Guerra v. State

In this petition alleging ineffective assistance of appellate counsel, petitioner argues that counsel was constitutionally ineffective in failing to raise an error in the jury instruction on the burglary charge. The charge given instructed the jury that as to the third element he should have had a “fully formed conscious intent to commit the crime of burglary ” [e.s.] in the dwelling. In Viveros v. State, 699 So.2d 822, 824 (Fla. 4th DCA 1997) and Puskac v. State, 735 So.2d 522 (Fla. 4th DCA 1999), we have found this instruction fundamental error.

We reject the State’s argument that another…