Opinion
No. 3D06-704.
November 29, 2006.
Appeal from the Circuit Court, Miami-Dade County, Diane V. Ward, J.
Kenneth Walker, in proper person.
Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
Prior report: 920 So.2d 776.
ON MOTION FOR REHEARING DENIED
The motion for rehearing is denied. We withdraw our order of March 31, 2006 and substitute the following in its place.
In this petition for writ of habeas corpus Kenneth Walker claims ineffective assistance of appellate counsel. On our independent review of the record and the State's confession of error, we grant the writ sought. For the reasons stated in Harris v. State, 937 So.2d 211, 212 (Fla. 3d DCA 2006), based on the totality of the circumstances, the trial court committed fundamental error when it included the conjunction "and/or" in the jury instruction between Walker's name and that of co-defendant Harris. See Dorsett v. McRay, 901 So.2d 225, 227 (Fla. 3d DCA 2005). Walker's appellate counsel rendered ineffective assistance of appellate counsel by failing to raise this issue on direct appeal.
We, therefore, grant the petition, reverse Walker's conviction, vacate his sentence, and remand the case for a new trial.