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Ayala v. State4/30/2004
. State, 28 Fla. L. Weekly D2283 (Fla. 2d DCA Oct.3, 2003). We granted rehearing upon realizing that we had overlooked the supreme court's opinion in Ray v. State, 403 So.2d 956 (Fla.1981). Accordingly, we withdrew that opinion. Ayala v. State, 2003 WL 22259691 (Fla. 2d DCA Nov.14, 2003). [FN1]
FN1. The author of this opinion wrote a concurrence in the original opinion. That concurrence contains a discussion of Looney and Taylor v. State, 444 So.2d 931 (Fla.1983), which is the product of a confused mind. It should not be relied upon except to confirm my fallibility.
In Ray, the supreme court held
that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.
Ray, 403 So.2d at 961 (footnote omitted). This court followed Ray in Thomas v. State, 820 So.2d 382 (Fla. 2d DCA 2002), a case that is similar in many respects to *3 Mr. Ayala's case. In Thomas, we affirmed a conviction for driving under the influence (DUI) with serious bodily injury, even though this offense was not a permissive lesser-included offense of DUI manslaughter as charged in the information. Thomas, 820 So.2d at 384-85. Nevertheless, the offense of DUI with serious bodily injury was lesser in degree and penalty and the defendant had not objected to the instructions. Admittedly, this court has not always consistently followed Ray, but we recently receded from those cases that conflicted with Ray, and reaffirmed the principles announced in Ray. See Chambers v. State, No. 2D03-1716, 880 So.2d 696, 2004 WL 895856 (Fla. 2d DCA Apr.28, 2004).
In Mr. Ayala's case, the instructions provided on manslaughter by act and manslaughter by culpable negligence were standard instructions that had not been modified as they were in Looney. Mr. Ayala did not object to these instructions. Either form of manslaughter was lesser in degree and penalty than the main charge of second-degree murder. [FN2] Thus, Looney is not applicable in this case, and Ray controls.
FN2. Second-degree murder is a first-degree felony. § 782.04(2), Fla. Stat. (2000). Manslaughter, whether by act, procurement, or culpable negligence, is a second-degree felony. § 782.07(1), Fla. Stat. (2000).
Accordingly, we conclude that Mr. Ayala's appellate counsel was not ineffective when counsel chose not to brief an issue as fundamental error when there was controlling precedent from the supreme court that would have prohibited this court from granting any relief to Mr. Ayala.
Denied.
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