NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

DENEAL BROWN, ) 

 ) 

 Petitioner, ) 

 ) 

v. ) Case No. 2D14-1166 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Respondent. ) 

 ) 

Opinion filed March 30, 2016. 

Petition Alleging Ineffective Assistance 

of Appellate Counsel. Pinellas County; 

Joseph A. Bulone, Judge. 

Dane K. Chase of Chase Law Firm, for 

Petitioner. 

No appearance for Respondent. 

KELLY, Judge. 

 On remand from the Florida Supreme Court, we reconsider Deneal 

Brown's petition alleging ineffective assistance of appellate counsel in light of the 

subsequent decision in Griffin v. State, 160 So. 3d 63 (Fla. 2015). Our conclusion that 

Mr. Brown is entitled to no relief is unchanged. 

 Mr. Brown was charged with second-degree murder. His counsel told the 

jury in his opening statement: "I believe that the evidence is going to show that this was 
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self-defense, that what turned into a verbal confrontation then turned into gun play, . . . 

but the person who shot [the victim] was just quicker than he was." Mr. Brown testified 

at trial that as he was driving out of the victim's apartment complex, the victim engaged 

him in a verbal altercation. Mr. Brown started to drive away but returned when the 

victim challenged him and his friend, who was a passenger in the car, to a fight. Mr. 

Brown testified that his friend shot the victim when the victim reached for his gun.1 

Nevertheless, Mr. Brown's counsel argued in closing, "I told you this was a case about 

self-defense, and I told you that's what the evidence is going to show. This is a case of 

self-defense." 

 The State disputed the presence of Mr. Brown's friend and Mr. Brown's 

argument that the shooting was in self-defense, arguing that Mr. Brown's acts of driving 

back to the victim and then shooting him in the torso demonstrated a depraved mind 

without regard for human life. The jury found Mr. Brown guilty as charged, and the trial 

court sentenced him to life in prison with a twenty-five-year mandatory minimum term in 

accordance with the jury's findings that Mr. Brown discharged a firearm during the 

commission of the offense and that the discharge caused the victim's death. 

 "Claims of self defense and defense of another involve 'an admission and 

avoidance'." Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th DCA 2001) (quoting 

Williams v. State, 588 So. 2d 44, 45 (Fla. 1st DCA 1991)). By arguing without 

qualification that he or his friend acted in self-defense, Mr. Brown necessarily conceded 

that either intentionally caused the victim's death. "[A] defective instruction in a criminal 

 1Mr. Brown testified that his friend was killed shortly after this homicide 

occurred. 
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case can only constitute fundamental error if the error pertains to a material element 

that is disputed at trial." Daniels v. State, 121 So. 3d 409, 418 (Fla. 2013). Thus, the 

manslaughter by act instruction that the supreme court held to be erroneous in State v. 

Montgomery, 39 So. 3d 252 (Fla. 2010), was not fundamental error in Mr. Brown's case 

because it did not prevent the jury from considering whether the evidence fit the 

elements of manslaughter. Cf. Daniels, 121 So. 3d at 418-19 (holding the faulty 

manslaughter by act instruction was fundamental error because the defendant admitted 

to shooting the gun to scare someone but insisted he did not aim at anyone and did not 

intend to kill); Horne v. State, 128 So. 3d 953, 956-57 (Fla. 2d DCA 2013) (holding that 

because the defendant testified that he felt his life was threatened and that he intended 

to shoot the victim in the leg but did not intend to kill the victim, the faulty instruction was 

fundamental error). 

 Petition denied. 

ALTENBERND and WALLACE, JJ., Concur.