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Florida District Courts of Appeal, 2013

Tolbert v. State

Tolbert v. State
Florida District Courts of Appeal · Decided August 23, 2013 · Berger, Orfinger, Palmer
120 So. 3d 212; 2013 WL 4482954; 2013 Fla. App. LEXIS 13464 (Southern Reporter, Third Series)

Tolbert v. State

Opinion of the Court

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 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.

. 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.

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