Dominique Tolbert v. State

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2013 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED DOMINIQUE J. TOLBERT, Petitioner, v. Case No. 5D13-1399 STATE OF FLORIDA, Respondent. ________________________________/ Opinion filed August 23, 2013 Petition Alleging Ineffectiveness of Appellate Counsel, A Case of Original Jurisdiction. Dominique J. Tolbert, Lake City, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent. PER CURIAM. Petitioner, Dominique J. Tolbert, seeks another appeal, alleging ineffective assistance of appellate counsel. See generally Fla. R. App. P. 9.141(d). We deny the petition.1 See Contreras-Mayahua v. State, 40 So. 3d 861, 863 (Fla. 4th DCA 2010) (finding that erroneous manslaughter by act instruction as lesser included offense of                                                              1 We disregard the State s concession of error as it fails to recognize that Petitioner s conviction for manslaughter makes the concerns that were noted in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), inapplicable to the present case. second-degree murder was not fundamental error where defendant was convicted of lesser included offense of manslaughter). PETITION DENIED. PALMER, ORFINGER and BERGER, JJ., concur. 2   

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