Davis v. State , 2000 Fla. App. LEXIS 2304 ( 2000 )

CONFESSION OF ERROR

PER CURIAM.

Upon the State’s proper confession of error, we grant John H. Davis’s Petition for Writ of Habeas Corpus that alleged ineffective assistance of appellate counsel in connection with his direct appeal from his conviction for burglary of an unoccupied structure. As the State has conceded, Davis’s appellate counsel should have argued that the erroneous jury instruction on burglary constituted fundamental error requiring reversal. See Harrison v. State, 743 So.2d 178 (Fla. 3d DCA 1999); Viveros v. State, 699 So.2d 822 (Fla. 4th DCA 1997). As a result of the State’s confession of error, the remaining issue raised by Davis is rendered moot. We grant the petition, reverse the conviction of burglary of an unoccupied structure, and remand for a new trial.