Viera v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CARLOS VIERA, Petitioner, v. STATE OF FLORIDA, Respondent. ) ) ) ) ) ) ) ) ) ) Case No. 2D11-4093 Opinion filed February 12, 2014. Petition Alleging Ineffective Assistance of Appellate Counsel. Manatee County; Debra Johnes Riva, Judge. Carlos Viera, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley and Nancy Jack, Assistant Attorneys General, Tampa, for Appellee. PER CURIAM. In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), Carlos Viera contends that his appellate counsel was ineffective for failing to argue that the then-standard jury instruction for manslaughter by act as given to the jury in Viera's trial for second-degree murder was fundamental error. Based on the facts of Viera's case and for the reasons discussed in Horne v. State, 39 Fla. L. Weekly D49 (Fla. 2d DCA Dec. 27, 2013), we are constrained to reverse Viera's second-degree murder conviction and remand for a new trial. Reversed and remanded. CASANUEVA, MORRIS, and BLACK, JJ., Concur. -2-

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