IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006
KENNETH WALKER, Appellant, vs. THE STATE OF FLORIDA, Appellee.
** ** ** ** ** ** LOWER TRIBUNAL NO. 03-20493 CASE NO. 3D06-704
Opinion filed November 29, 2006. An Appeal from the Circuit Court for Miami-Dade County, Diane Ward, Judge. Kenneth Walker, in proper person. Charles J. Crist, Jr., Attorney General, Armas, Assistant Attorney General, for appellee. and Maria T.
Before WELLS, CORTIÑAS, and ROTHENBERG, JJ. ON MOTION FOR REHEARING DENIED WELLS, Judge. 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. Harris v. State, For the reasons stated in
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 Harris. between See Walker's v. name and 901 that So. of 2d co225,
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.