Lopez v. State, 68 So. 3d 332

Lopez, charged with first-degree murder, received jury instructions including manslaughter by act; he was convicted of second-degree murder on appeal; the manslaughter instruction allegedly added an extra element of intent to kill; the instruction followed the then standard but later criticized rule; Lopez pursued a direct appeal and relief under Rule 9.141(c); the First District later certified conflict with Barton, prompting this petition for ineffective assistance of appellate counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel’s failure to argue the manslaughter-by-act instruction was fundamental error constitutes ineffective assistance.	Lopez argues the standard instruction was fundamentally erroneous and counsel failed to raise it.	State contends no error or that the issue is non-fundamental; counsel had no duty to anticipate changes in law.	Yes; Lopez entitled to relief; conviction vacated and remanded for new trial.

Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987) (approval of the standard manslaughter by act instruction (then controlling))
Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006) (ineffective assistance for failing to raise erroneous instruction; retroactivity considerations)
Del Valle v. State, 52 So.3d 16 (Fla. 2d DCA 2010) (reversed on ineffective assistance for not challenging the trial court’s instruction; pipeline considerations)
Montgomery v. State, 39 So.3d 252 (Fla. 2010) (held the manslaughter-by-act instruction was error; established conflict with Barton)
Shabazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007) (failure to cite favorable decisions from other districts could be ineffective)
Gervasoni v. State, 766 So.2d 478 (Fla. 5th DCA 2000) (cited on role of counsel and non-anticipation of law changes)
Whatley v. State, 679 So.2d 1269 (Fla. 2d DCA 1996) (counsel's duty to cite favorable precedent)
Floridian case, McCann v. Moore (Fla. 4th DCA 2000) (timeliness of presenting favorable authority)