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Davis v. State

District Court of Appeal of Florida, Third District
Mar 8, 2000
749 So. 2d 1291 (Fla. Dist. Ct. App. 2000)

Opinion

No. 3D99-3031.

Opinion filed March 8, 2000.

A Case of Original Jurisdiction — Habeas Corpus, L.T. No. 97-17953.

John H. Davis, in proper person.

Robert A. Butterworth, Attorney General, and Thomas C. Mielke, Assistant Attorney General, for respondent.

Before LEVY, GODERICH and GREEN, JJ.


CONFESSION OF ERROR


Upon the State's proper confession of error, we grant John H. Davis's Petition for Writ of Habeas Corpus that alleged ineffective assistance of appellate counsel in connection with his direct appeal from his conviction for burglary of an unoccupied structure. As the State has conceded, Davis's appellate counsel should have argued that the erroneous jury instruction on burglary constituted fundamental error requiring reversal. See Harrison v. State, 743 So.2d 178 (Fla. 3d DCA 1999); Viveros v. State, 699 So.2d 822 (Fla. 4th DCA 1997). As a result of the State's confession of error, the remaining issue raised by Davis is rendered moot. We grant the petition, reverse the conviction of burglary of an unoccupied structure, and remand for a new trial.


Summaries of

Davis v. State

District Court of Appeal of Florida, Third District
Mar 8, 2000
749 So. 2d 1291 (Fla. Dist. Ct. App. 2000)
Case details for

Davis v. State

Case Details

Full title:JOHN H. DAVIS, Petitioner, vs. THE STATE OF FLORIDA, Respondent

Court:District Court of Appeal of Florida, Third District

Date published: Mar 8, 2000

Citations

749 So. 2d 1291 (Fla. Dist. Ct. App. 2000)