               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


DENEAL BROWN,                                 )
                                              )
              Petitioner,                     )
                                              )
v.                                            )          Case No. 2D14-1166
                                              )
STATE OF FLORIDA,                             )
                                              )
              Respondent.                     )
                                              )

Opinion filed March 30, 2016.

Petition Alleging Ineffective Assistance
of Appellate Counsel. Pinellas County;
Joseph A. Bulone, Judge.

Dane K. Chase of Chase Law Firm, for
Petitioner.

No appearance for Respondent.


KELLY, Judge.


              On remand from the Florida Supreme Court, we reconsider Deneal

Brown's petition alleging ineffective assistance of appellate counsel in light of the

subsequent decision in Griffin v. State, 160 So. 3d 63 (Fla. 2015). Our conclusion that

Mr. Brown is entitled to no relief is unchanged.

              Mr. Brown was charged with second-degree murder. His counsel told the

jury in his opening statement: "I believe that the evidence is going to show that this was
self-defense, that what turned into a verbal confrontation then turned into gun play, . . .

but the person who shot [the victim] was just quicker than he was." Mr. Brown testified

at trial that as he was driving out of the victim's apartment complex, the victim engaged

him in a verbal altercation. Mr. Brown started to drive away but returned when the

victim challenged him and his friend, who was a passenger in the car, to a fight. Mr.

Brown testified that his friend shot the victim when the victim reached for his gun.1

Nevertheless, Mr. Brown's counsel argued in closing, "I told you this was a case about

self-defense, and I told you that's what the evidence is going to show. This is a case of

self-defense."

              The State disputed the presence of Mr. Brown's friend and Mr. Brown's

argument that the shooting was in self-defense, arguing that Mr. Brown's acts of driving

back to the victim and then shooting him in the torso demonstrated a depraved mind

without regard for human life. The jury found Mr. Brown guilty as charged, and the trial

court sentenced him to life in prison with a twenty-five-year mandatory minimum term in

accordance with the jury's findings that Mr. Brown discharged a firearm during the

commission of the offense and that the discharge caused the victim's death.

              "Claims of self defense and defense of another involve 'an admission and

avoidance'." Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th DCA 2001) (quoting

Williams v. State, 588 So. 2d 44, 45 (Fla. 1st DCA 1991)). By arguing without

qualification that he or his friend acted in self-defense, Mr. Brown necessarily conceded

that either intentionally caused the victim's death. "[A] defective instruction in a criminal


              1
                  Mr. Brown testified that his friend was killed shortly after this homicide
occurred.




                                               -2-
case can only constitute fundamental error if the error pertains to a material element

that is disputed at trial." Daniels v. State, 121 So. 3d 409, 418 (Fla. 2013). Thus, the

manslaughter by act instruction that the supreme court held to be erroneous in State v.

Montgomery, 39 So. 3d 252 (Fla. 2010), was not fundamental error in Mr. Brown's case

because it did not prevent the jury from considering whether the evidence fit the

elements of manslaughter. Cf. Daniels, 121 So. 3d at 418-19 (holding the faulty

manslaughter by act instruction was fundamental error because the defendant admitted

to shooting the gun to scare someone but insisted he did not aim at anyone and did not

intend to kill); Horne v. State, 128 So. 3d 953, 956-57 (Fla. 2d DCA 2013) (holding that

because the defendant testified that he felt his life was threatened and that he intended

to shoot the victim in the leg but did not intend to kill the victim, the faulty instruction was

fundamental error).

              Petition denied.



ALTENBERND and WALLACE, JJ., Concur.




                                             -3-
