      IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                    October 14, 2016


TREVOR DOOLEY,                   )
                                 )
           Petitioner,           )
                                 )
v.                               )               Case No. 2D16-29
                                 )
STATE OF FLORIDA,                )
                                 )
           Respondent.           )
________________________________ )


BY ORDER OF THE COURT:


       Respondent's motion for rehearing filed May 6, 2016, in which the State has

withdrawn its concession of error, is denied. This court on its own motion withdraws the

prior opinion dated April 22, 2016, and substitutes the attached opinion in its place.



I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK
               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT



TREVOR DOOLEY,                   )
                                 )
           Petitioner,           )
                                 )
v.                               )                  Case No.    2D16-29
                                 )
STATE OF FLORIDA,                )
                                 )
           Respondent.           )
________________________________ )

Opinion filed October 14, 2016.

Petition Alleging Ineffective Assistance
of Appellate Counsel. Hillsborough
County; Ashley B. Moody, Judge.

William R. Ponall of Ponall Law,
Maitland, for Petitioner.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Brandon R. Christian,
Assistant Attorney General, Tampa,
for Respondent.


PER CURIAM.


              A jury convicted Trevor Dooley as charged of manslaughter with a

weapon, improper exhibition of a dangerous weapon or firearm, and open carrying of a

weapon, and this court affirmed his convictions on direct appeal. See Dooley v. State,

151 So. 3d 1243 (Fla. 2d DCA 2014) (table decision). Dooley now argues that his
appellate counsel was ineffective for failing to argue on direct appeal that the trial court's

instructions to the jury on justifiable use of deadly force were fundamentally erroneous.

See Fla. R. App. P. 9.141(d). The failure to argue on appeal that jury instructions were

fundamentally erroneous constitutes ineffective assistance of appellate counsel. See

Barnes v. State, 993 So. 2d 1012, 1013 (Fla. 2d DCA 2008). For the reasons that

follow, we grant the petition and afford Dooley a new appeal on this issue.

              At trial, Dooley testified that he intentionally shot the victim in justifiable

self-defense. However, he asserts that the trial court gave essentially conflicting

instructions on justifiable use of force based on sections 776.012 and 776.013(3),

Florida Statutes (2010). These conflicting instructions arguably created confusion for

the jury. And specifically, Dooley contends that the trial court erroneously instructed the

jury on two separate occasions that his use of deadly force against the victim was not

justified because he had a duty to retreat if he was engaged in unlawful activity at the

time of the homicide. Moreover, the State argued to the jury that Dooley's use of deadly

force was not justifiable, partially because he was committing the crime of unlawful

exhibition of a weapon when he killed the victim.

              According to Dooley, the State's reliance on the erroneous instructions

during closing argument exacerbated the error to the extent that his sole defense at trial

was negated. For this reason, Dooley contends that the error was fundamental, and had

this issue had been brought to this court's attention on direct appeal, the result of his

appeal would have been different.

              This court cannot determine whether the allegedly erroneous instructions

constituted fundamental error and deprived Dooley of a fair trial without reviewing the




                                              -2-
complete record on appeal. This court has held, in the context of a petition alleging

ineffective assistance of appellate counsel, that "[a] determination as to whether the

justifiable use of deadly force instruction constituted fundamental error requires a full

review of the record on appeal." Ortiz v. State, 905 So. 2d 1016, 1017 (Fla. 2d DCA

2005). See also Barnes, 993 So. 2d at 1013 (granting a new appeal to the petitioner

because "[a] determination as to whether the instruction constituted fundamental error

requires a full review of the record" (citing Zeno v. State, 922 So. 2d 431, 433 (Fla. 2d

DCA 2006))). The appellate court must consider "the effect of the erroneous instruction

in the context of the other instructions given, the evidence adduced in the case, and the

arguments and trial strategies of counsel." Garrett v. State, 148 So. 3d 466, 469 (Fla.

1st DCA 2015), review dismissed, 192 So. 3d 470 (Fla. 2016) (quoting Smith v. State, 76

So. 3d 379, 383 (Fla. 1st DCA 2011)). Only from that vantage point can this court

determine that the allegedly erroneous instructions rendered Dooley's trial fundamentally

unfair.

              Consequently, we grant Dooley's petition to the extent that we allow him a

new appeal on this issue only. This opinion shall serve as a timely notice of appeal

from the judgment and sentence in case number 10-CF-15138 imposed on January 17,

2013.

              The circuit court clerk shall treat this opinion as a notice of appeal and

shall promptly certify it and return it to this court as with any notice of appeal, and a new

appellate case number will be assigned to this appeal and an acknowledgment letter will

issue at that time. The clerk shall then prepare the record in accordance with Florida

Rule of Appellate Procedure 9.200.




                                            -3-
              Within twenty days, the trial court shall appoint appellate counsel for

Dooley. Counsel's briefs shall be served in keeping with rule 9.210(f) and shall be

limited to the issue of fundamental error in the jury instructions.

              Petition granted.



KELLY, LaROSE, and LUCAS, JJ., Concur.




                                            -4-
