NOT FINAL UNTIL TIME EXPI RES 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 Denea l Brown's petition alleging ineffective assistance of appellate c ounsel in light of the subsequent decision in Griffin v. State, 160 So. 3d 63 (Fla. 20 15). Our conclusion that Mr. Brown is entitled to no relief is unchanged. Mr. Brown was charged with s econd-degree murder. His counsel told the jury in his opening statement: "I believe that the evidence is going to show that this was-2- self-defense, that what turned into a verbal confrontation then turned into gun play, . . . but the person who shot [the vict im] was just quicker than he w as." Mr. Brown testified at trial that as he was driving out of the victim's apartment c omplex, the victim engaged him in a verbal altercation. Mr. Brown started to drive away b ut returned when the victim challenged him and his friend, who was a passenger in th e 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 yo u 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 demonstra ted 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 p rison with a twenty-five-year m andatory 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 vic tim's death.

"Claims of self defense and defense of another involve 'an ad mission 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 frie nd acted in self-defense, Mr. Brown necessarily conceded that either intentionally caused the victim's death. "[A] defe ctive instruction in a criminal

1 Mr. Brown testified that his fr iend was killed shortly after th is homicide occurred.-3- case can only constitute fundamental error if the error pertain s 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 t hat the supreme court held to be erroneous in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), was not fundamental erro r in Mr. Brown's case because it did not prevent the ju ry from considering whether th e evidence fit the elements of manslaughter. Cf. Daniels, 121 So. 3d at 418-19 (h olding the faulty manslaughter by act instruction was fundamental error because t he defendant admitted to shooting the gun to scare someone but insisted he did not ai m at anyone and did not intend to kill); Horne v. State, 128 So. 3d 953, 956-57 (Fla. 2 d DCA 2013) (holding that

because the defendant testified that he felt his life was threa tened and that he intended to shoot the victim in the leg but did not intend to kill the v ictim, the faulty instruction was fundamental error).

Petition denied.

ALTENBERND and WALLACE, JJ., Concur.