ALLAN TROI BURNEY

v.

STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ALLAN TROI BURNEY, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 2D19-646

June 16, 2021

BY ORDER OF THE COURT:

Upon consideration of appellant's motion for rehearing, motion for rehearing en banc, motion for a written opinion, and motion for certification of question of great public importance to the Florida Supreme Court, filed on March 25, 2021,

IT IS ORDERED that the motion for rehearing and motion for written opinion are granted to the extent that the opinion dated March 10, 2021, is withdrawn and the attached opinion is substituted therefor. Appellant's motions for certification and for rehearing en banc are denied.

No further motions for rehearing will be entertained in this appeal.

I HEREBY CERTIFY THE FOREGOING IS A

TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ALLAN TROI BURNEY, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 2D19-646

June 16, 2021

Appeal from the Circuit Court for Pinellas County; Frank Quesada, Senior Judge.

Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Allison C. Heim, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

To the extent that Allan Troi Burney appeals the final order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, we affirm that denial without discussion.

To the extent that Burney asserts that he received ineffective assistance of appellate counsel, we dismiss. Burney's judgment and sentence became final on direct review on March 31, 2011, with the issuance of our mandate on direct appeal. Burney v. State, 56 So. 3d 773 (Fla. 2d DCA 2011) (table decision). See, e.g., Rogers v. State, 146 So. 3d 1263, 1264 (Fla. 2d DCA 2014) ("The time for Rogers to file a motion under rule 3.850(b) then began to run on the date of this court's mandate."). Therefore, assuming we may construe that portion of his April 13, 2020, brief as a petition for relief pursuant to Florida Rule of Appellate Procedure 9.141(d), it is untimely. See Fla. R. App. P. 9.141(d)(5) ("In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review." (emphasis added)).

Finally, to the extent that Burney asks that we nonetheless grant him habeas relief because the alleged ineffective assistance of appellate counsel resulted in a manifest injustice, we decline. Burney, who was found guilty, in pertinent part, of second-degree murder and attempted second-degree murder, argues that pursuant to State v. Montgomery, 39 So. 3d 252 (Fla. 2010), receded from by Knight v. State, 286 So. 3d 147 (Fla. 2019), the trial court fundamentally erred in its manslaughter instruction to the jury. Montgomery was decided during the pendency of Burney's direct appeal, and although appellate counsel briefed the issue, counsel did not preserve the issue for further review after this court denied relief, thus failing to "put it in the pipeline." Burney asserts that if appellate counsel had done so, his murder convictions would have been vacated, and it would be manifestly unjust not to vacate those convictions now.

As Burney acknowledges, the Florida Supreme Court has retreated from Montgomery, going so far as to state that its decision in that case was error. See Knight, 286 So. 3d at 151 ("In the cases on which Knight relies, we erred in our fundamental error analysis. Most importantly, we erred by transforming the unreviewable pardon power of the jury into a fundamental right of the defendant. And we further erred by treating the deprivation of the defendant's nonexistent right to the availability of a jury pardon as a structural defect that vitiates the fairness of the trial."). He maintains, however, that his convictions should be vacated because he

"indubitably was entitled to relief had appellate counsel performed as required."

Burney's "manifest injustice" argument misses the mark.¹ Although he repeatedly argues that he is entitled to vacatur of his convictions because that is the remedy he would have gotten under Montgomery, he repeatedly fails to acknowledge the second half of the remedy under Montgomery, i.e., remand for a trial without the "fundamentally erroneous" manslaughter instruction. Montgomery, 39 So. 3d at 260 ("[W]e conclude that the use of the standard jury instruction on manslaughter constituted fundamental, reversible error in Montgomery's case and requires that Montgomery receive a new trial." (emphasis added)). As Knight makes clear, he has already received such a trial. Moreover, we cannot conclude that Burney-who was duly found guilty of second-degree murder and attempted second-degree murder by a jury of his peers, beyond a reasonable doubt and after proper instruction on those offenses—

suffered a manifest injustice because he missed his chance to benefit from an erroneous supreme court decision.

Order affirmed; petition dismissed.

LaROSE, ROTHSTEIN-YOUAKIM, and STARGEL, JJ., Concur.