Dawkins v. State, 170 So. 3d 81

Chance Dawkins sought a writ of habeas corpus alleging appellate counsel was ineffective for failing to move for rehearing after this Court affirmed his conviction, based on recent precedent (Haygood).
Dawkins had been convicted of second-degree murder; the trial court instructed the jury on manslaughter by act using an instruction later found flawed under State v. Montgomery.
The jury also received an instruction on manslaughter by culpable negligence (a distinct lesser-included theory).
Haygood holds that giving a manslaughter-by-act instruction that tracks the pre-Montgomery, erroneous formulation is fundamental error when the evidence does not reasonably support manslaughter by culpable negligence and the conviction is one step removed from manslaughter.
On review, the court found the record contained conflicting testimony about intent and some evidence that could support a finding of manslaughter by culpable negligence.
Because the culpable-negligence instruction could reasonably be supported by the evidence, the court concluded Haygood did not control and denied the habeas petition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not moving for rehearing based on Haygood	Dawkins: counsel should have sought rehearing within 15 days to raise Haygood; failure deprived him of appellate advocacy	State: counsel’s omission only matters if the underlying error was fundamental under Haygood; here the record supports culpable negligence	Denied — no ineffective assistance because Haygood did not apply given evidence supporting culpable negligence
Whether the Montgomery-based manslaughter-by-act instruction was a fundamental error despite a culpable-negligence instruction	Dawkins: the flawed manslaughter-by-act instruction required reversal per Montgomery and Haygood	State: because jury was also instructed on culpable negligence and evidence could support it, the error was not per se fundamental	Held: instructional error was not fundamental here; Haygood inapplicable because evidence could reasonably support manslaughter by culpable negligence

Haygood v. State, 109 So. 3d 735 (Fla. 2013) (holding culpable-negligence instruction does not cure a flawed manslaughter-by-act instruction when no evidence supports culpable negligence)
State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (holding manslaughter-by-act does not require intent and the then-standard instruction was fundamentally flawed)
Mitchel v. Moore, 786 So. 2d 521 (Fla. 2001) (pipeline doctrine allows application of new law to cases pending on direct review)
Smith v. State, 145 So. 3d 972 (Fla. 1st DCA 2014) (distinguishing Haygood where no evidence supported culpable negligence)