Dooley v. State
206 So. 3d 87
Fla. Dist. Ct. App.2016Background
- Trevor Dooley was convicted by a jury of manslaughter with a weapon, improper exhibition of a dangerous weapon, and open carrying of a weapon; convictions were affirmed on direct appeal.
- At trial Dooley testified he intentionally shot the victim in claimed self-defense (justifiable use of deadly force).
- The trial court instructed the jury using language from sections 776.012 and 776.013(3), which Dooley contends were effectively conflicting regarding duty to retreat when engaged in unlawful activity.
- The jury was instructed twice that deadly force was not justified if the defendant was committing unlawful activity and had a duty to retreat; the State emphasized that point in closing argument.
- Dooley filed a petition alleging ineffective assistance of appellate counsel for failing to raise on direct appeal that the jury instructions on justifiable deadly force were fundamentally erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not arguing the jury instructions on justifiable deadly force were fundamentally erroneous | Dooley: Instructions conflicted (776.012 vs. 776.013(3)), created jury confusion, were emphasized by State in closing, and negated his sole defense so error was fundamental | State: (after initial concession) opposed rehearing and withdrew concession of error; argued no fundamental error without full record review | Court granted petition for a new appeal limited to whether the jury instructions constituted fundamental error and remanded for appointment of appellate counsel and briefing on that issue |
Key Cases Cited
- Barnes v. State, 993 So. 2d 1012 (Fla. 2d DCA 2008) (failure to raise instructional fundamental error on appeal can constitute ineffective assistance of appellate counsel)
- Ortiz v. State, 905 So. 2d 1016 (Fla. 2d DCA 2005) (determination of whether deadly-force instruction is fundamental error requires full record review)
- Zeno v. State, 922 So. 2d 431 (Fla. 2d DCA 2006) (same principle regarding review of instructions for fundamental error)
- Garrett v. State, 148 So. 3d 466 (Fla. 1st DCA 2015) (erroneous instruction must be evaluated in context of other instructions, evidence, and counsel strategies)
- Smith v. State, 76 So. 3d 379 (Fla. 1st DCA 2011) (same contextual approach to instructional error)
- Dooley v. State, 151 So. 3d 1243 (Fla. 2d DCA 2014) (Dooley’s prior direct-appeal affirmation of convictions)