MINOR v. SINGLETARY (1999)

District Court of Appeal of Florida,Third District.

Herman MINOR, Petitioner, v. Harry SINGLETARY, Secretary of Florida Department of Corrections, Respondent.

No. 98-2123

Decided: February 24, 1999

Before COPE, GERSTEN, and SHEVIN, JJ.

Herman Minor, in proper person. Robert A. Butterworth, Attorney General, and Terri Leon-Benner, Assistant Attorney General (Fort Lauderdale), for respondent.

ON PETITION FOR WRIT OF HABEAS CORPUS

Herman Minor petitions this Court for an opportunity to file a second appeal on the ground that his appellate counsel overlooked an appealable issue the first time around. Minor contends 1) that the trial judge gave an erroneous oral jury instruction regarding the definition of “excusable homicide,” 2) that the error was fundamental, and 3) that his appellate counsel omitted this fundamental error argument in Minor's appeal. The record, however, reveals that the jury was provided with the correct jury instructions in written form. Thus, there was no fundamental error. See Wike v. State, 698 So.2d 817 (Fla.), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998); Thomas v. State, 711 So.2d 89 (Fla. 1st DCA 1998). Accordingly, the petition is denied.

Petition denied.

PER CURIAM.

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