Opinion
Case No. 4D03-4290.
Opinion filed January 28, 2004.
Petition for ineffective assistance of counsel to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 00-3483 CFA.
Robert Robinson, Okeechobee, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
Robert Robinson filed a petition alleging ineffective assistance of appellate counsel, claiming five grounds of error. We deny relief, without opinion, on all grounds except the first. We grant the petition, on the first ground, but deny the petitioner's request that this court order a new trial, concluding instead that petitioner is entitled to a belated appeal because appellate counsel may have been ineffective in raising in his original direct appeal the issue of whether the trial court's jury instruction for burglary on "remaining in" constituted fundamental error. See Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003).
The petitioner was convicted for his role in the theft of a lawnmower from a neighbor's shed. The petitioner contends that the trial court committed fundamental error by giving the "remaining in" instruction of the Standard Jury Instruction, citing this court's opinion in Lopez v. State, 805 So.2d 41 (Fla. 4th DCA 2001), receded from, en banc, by Roberson v. State, 841 So.2d 490, 493 (Fla. 4th DCA 2003).
In Roberson, we receded from Lopez, and determined that such a superfluous instruction was not always fundamental error. In so doing, we referenced two types of burglary cases where such an instruction could not reasonably mislead a jury. Id. at 492. As the instant case does not squarely fall within either example, petitioner's appellate counsel should have presented the issue on direct appeal.
Accordingly, this opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered July 2, 2001. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedures shall run from the date of this opinion. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.
STONE, HAZOURI and MAY, JJ., Concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.