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

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

MORRIS CRENSHAW,                   )
                                   )
           Appellant,              )
                                   )
v.                                 )                             Case No. 2D17-4187
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed August 15, 2018.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Sarasota County; Thomas Krug, Judge.

Morris Crenshaw, pro se.

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


KHOUZAM, Judge.

              Morris Crenshaw appeals the postconviction court's denial of his petition

for writ of habeas corpus, which it treated as a motion filed pursuant to Florida Rule of

Criminal Procedure 3.850. We treat the appeal as an original petition for writ of habeas

corpus to correct a manifest injustice. See Carswell v. State, 23 So. 3d 195, 196 (Fla.

4th DCA 2009).
              Crenshaw correctly argued in past proceedings in this court that the trial

court committed fundamental error in giving an erroneous instruction on manslaughter

when he was convicted of second-degree murder, a crime one step removed from

manslaughter. See State v. Montgomery, 39 So. 3d 252, 254, 257 (Fla. 2010) (holding

that standard jury instruction on second-degree murder improperly imposed intent as an

additional element on the lesser-included offense of manslaughter and constituted

fundamental error); see also Griffin v. State, 160 So. 3d 63, 68-69 (Fla. 2015) (holding

that if a defendant claims he is not the perpetrator, intent is still at issue and thus,

erroneous jury instruction is fundamental error); Daniels v. State, 121 So. 3d 409, 418-

19 (Fla. 2013) (holding that giving of erroneous manslaughter instruction was

fundamental error because the record reflected that the issue of whether Daniels

intentionally caused decedent's death was disputed and was pertinent and material to

what the jury had to consider in reaching its verdict). This court, however, denied him

relief in those earlier proceedings. See Crenshaw v. State, 211 So. 3d 1036 (Fla. 2d

DCA 2016) (denying petition for writ of habeas corpus); Crenshaw v. State, 129 So. 3d

1073 (Fla. 2d DCA 2013) (denying petition alleging ineffective assistance of appellate

counsel); Crenshaw v. State, 49 So. 3d 754 (Fla. 2d DCA 2010) (per curiam

affirmance). But an appellate court has the power to reconsider and correct its

erroneous rulings made in earlier appeals and original proceedings to prevent a

manifest injustice. See State v. Akins, 69 So. 3d 261, 268 (Fla. 2011); Wardlow v.

State, 212 So. 3d 1091, 1093-94 (Fla. 2d DCA 2017).

              Crenshaw's argument has merit because it would be manifestly unjust to

deny him relief under these circumstances where this court and other district courts




                                             -2-
have given similarly situated appellants the benefit of Montgomery and have reversed

for a new trial. See Cummings v. State, 103 So. 3d 1048, 1048 (Fla. 2d DCA 2013)

(reversing denial of petition alleging ineffective assistance of appellate counsel for

failing to argue that the manslaughter instruction was fundamental error where the initial

brief was filed after the supreme court's decision in Montgomery issued); Curry v. State,

64 So. 3d 152, 155 (Fla. 2d DCA 2011) (granting postconviction relief because

appellate counsel did not request supplemental briefing to raise improper jury instruction

after supreme court issued Montgomery); Del Valle v. State, 52 So. 3d 16, 18-19 (Fla.

2d DCA 2010) (holding appellate counsel provided ineffective assistance by failing to

argue that giving the then-standard manslaughter by act was fundamental error when

initial brief was filed after the First District's opinion in Montgomery was issued); Kerney

v. State, 217 So. 3d 138, 143 (Fla. 3d DCA 2017) (vacating conviction for second-

degree murder and remanding for a new trial to prevent a manifest injustice under

similar facts); Paul v. State, 183 So. 3d 1154, 1156 (Fla. 5th DCA 2015) (reversing

order denying Paul a new trial when his brother was granted a new trial "based on the

significant similarities in their cases" where a manifest injustice would occur if Paul were

not granted relief).

              Petition granted, order vacated, conviction and sentence for second

degree murder reversed, and case remanded for new trial on that charge only.


LaROSE, C.J., and BADALAMENTI, J., Concur.




                                            -3-
