       Third District Court of Appeal
                               State of Florida

                           Opinion filed June 17, 2015.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D13-2501
                         Lower Tribunal No. 07-26997
                             ________________


                              Chance Dawkins,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.



     A case of original jurisdiction—Habeas Corpus.

     Chance Dawkins, in proper person.

     Pamela Jo Bondi, Attorney General, for respondent.

Before SUAREZ, EMAS, and FERNANDEZ, JJ.

     SUAREZ, J.

           ON MOTION FOR REHEARING OR CLARIFICATION

     The State of Florida moves for rehearing or clarification of the May 28,

2014 opinion granting Chance Dawkins’ petition for writ of habeas corpus and
remanding for a new trial. We grant the State’s motion for rehearing, withdraw the

prior opinion and substitute the following in its place:

      Chance Dawkins petitions for writ of habeas corpus alleging ineffective

assistance of appellate counsel where counsel failed to move for rehearing based

on Haygood v. State, 109 So. 3d 735 (Fla. 2013).1 Dawkins argues that his second

degree murder conviction must be reversed because the manslaughter by act

instruction read to the jury was the same instruction held to be fundamentally

flawed under State v. Montgomery, 39 So. 3d 252 (Fla. 2010)2 and that pursuant to

Haygood, the additional instruction on manslaughter by culpable negligence did

not cure the error. We deny the petition.

      The Haygood Court held that

1 The basis of Dawkins’ habeas petition is appellate counsel’s failure to move for
rehearing within fifteen days of this Court’s affirmance in Dawkins’ direct appeal,
based on Cubelo v. State, 41 So. 3d 263, 267–68 (Fla. 3d DCA 2010) and Haygood
v. State, 54 So. 3d 1035, 1036–38 (Fla. 2d DCA 2011). Both of those cases were
subsequently quashed and remanded for consideration in light of Haygood v. State,
109 So. 3d 735 (Fla. 2013). We agree with Dawkins that his appeal was in the
Haygood “pipeline” during the fifteen-day rehearing window. See Mitchel v.
Moore, 786 So. 2d 521, 530 (Fla. 2001) (recognizing that the “pipeline” theory
allows a defendant to seek application of a new rule of law if the defendant’s case
is pending on direct review or not yet final at the time the new rule of law was
announced).
2 In State v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010), the Supreme Court of
Florida held that “the crime of manslaughter by act does not require proof that the
defendant intended to kill the victim.” The court further held that giving the then-
standard jury instruction for manslaughter by act, which required such proof,
constitutes fundamental error when a defendant is convicted of an offense one step
removed from that offense. Id. at 256–59.

                                            2
      giving the manslaughter by culpable negligence instruction does not
      cure the fundamental error in giving the erroneous manslaughter by
      act instruction where the defendant is convicted of an offense not
      more than one step removed from manslaughter and the evidence
      supports a finding of manslaughter by act, but does not reasonably
      support a finding that the death occurred due to the culpable
      negligence of the defendant.

Haygood, 109 So. 3d at 741-743. Thus, when there is no evidence that can

reasonably support a finding of culpable negligence the instructional error is

fundamental.       Id. at 743 [emphasis added].   Upon review of the record in

Dawkins’ case, there was conflicting testimony regarding intent, and although

Dawkins did not rely on a culpable negligence defense, the record shows there

existed, in all of the disputed evidence below, some evidence from which the jury

reasonably could have found Dawkins guilty of manslaughter by culpable

negligence, in contrast to the facts in Haygood. See Smith v. State, 145 So. 3d 972

(Fla. 1st DCA 2014) (holding that where there was no evidence from which the

jury could find the defendant guilty of the lesser included offense of manslaughter

by culpable negligence, Haygood is controlling); Hill v. State, 124 So. 3d 296, 302

(Fla. 2d DCA 2013) (holding that although the evidence was sufficient to sustain

the jury's verdict for attempted second-degree murder, “the jury was deprived of

the ability to decide whether [Mr. Hill's] lack of intent to kill, when considered

with all the other evidence, fit within the elements of the offense of [attempted]

manslaughter.”).     With that in mind, where the jury was also instructed in



                                        3
manslaughter by culpable negligence and the evidence could reasonably support

so finding, the error in giving the flawed Montgomery manslaughter by act

instructions was not per se fundamental error.      We conclude Haygood is not

applicable to these facts, and therefore deny the petition for Habeas Corpus.




                                         4
