FARMER v. STATE, 932 So.2d 639 (Fla.App. 4 Dist. 2006)

David W. FARMER, Petitioner, v. STATE of Florida, Respondent.

No. 4D05-2029.District Court of Appeal of Florida, Fourth District.
July 12, 2006.

Petition alleging ineffective assistance of appellate counsel to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 01-6137 CF10A.

David W. Farmer, Moore Haven, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for respondent.

ON MOTION FOR REHEARING
PER CURIAM.

David Farmer petitions this court for a writ of habeas corpus, alleging that his appellate attorney provided ineffective assistance

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by failing to raise fundamental errors in the jury instructions regarding the justifiable use of deadly force. We grant the motion for rehearing and withdraw our previous order denying the petition.

Without a complete appellate record, we cannot determine whether the erroneous instructions constituted fundamental error in this case. Accordingly, we grant Farmer a new appeal on this issue. We are not deciding at this time whether this issue is barred by res judicata based on the arguments presented on direct appeal.

STONE, WARNER and SHAHOOD, JJ., concur.