Leggett v. State

34 So. 3d 51, 2010 Fla. App. LEXIS 2939, 2010 WL 785906

• Court: District Court of Appeal of Florida
• Decided: March 10, 2010
• Docket: 3D09-740
• Status: Published

Opinions

PER CURIAM.

This is a petition for writ of habeas corpus which we treat as a timely petition alleging ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(c). Defendant-petitioner Carl Leggett, Jr., was charged with second-degree murder and was convicted as charged. This court affirmed his direct appeal without opinion. Leggett v. State, 961 So.2d 951 (Fla. 3d DCA 2007).

In the petition now before us, the defendant argues that his appellate counsel was ineffective for failing to raise a claim of fundamental error in the giving of the standard jury instruction on manslaughter by intentional act. The jury was instructed on manslaughter by intentional act as a lesser included offense.

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This court has held that there is no fundamental error in the giving of this standard jury instruction. Valdes-Pino v. State, 23 So.3d 871 (Fla. 3d DCA 2009). The Valdes-Pino panel followed Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009), and certified direct conflict with Montgomery v. State, — So.3d -, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009), review granted, 11 So.3d 943 (Fla.2009). See also Bonilla v. State, 23 So.3d 1256 (Fla. 3d DCA 2009) (certifying direct conflict with Montgomery). Accordingly, we deny the petition but certify direct conflict with Montgomery.

Petition denied; direct conflict certified.

The case went to the jury in February 2006.