Doss v. State

LUMPKIN, Vice-Presiding Judge,

dissents.

I must respectfully dissent to the Court’s decision in this case.

Appellant raises only one proposition of error: “The trial court erred in failing to instruct the jury on the lesser included offense of illegal entry”. The Court sua sponte seeks to not only raise an issue not included in the appeal but resolve the case on that issue which does not rise to fundamental error. At the same time the Court disregards the affidavit of trial counsel (State’s Exhibit 1 at the evidentiary hearing) which states that Appellant was counseled regarding his right to…