Toby v. State

Petitioner Leo Toby was convicted of second-degree murder as charged by a Duval County jury and sentenced to a term of imprisonment. He appealed and this court affirmed. Toby v. State, 7 So.3d 1102 (Fla. 1st DCA 2009). He now alleges that he received ineffective assistance of counsel in the direct appeal. We agree, reverse the conviction, and remand for a new trial.

Petitioner’s counsel filed the initial brief in the direct appeal on September 29, 2008, and the state’s answer brief was filed 25 days later. Our opinion issued on April 15, 2009. In the interim, however, we decided Montgomery v.…