¶1 Petitioner presents a timely claim of ineffective assistance of appellate counsel. We grant the petition as to the argument concerning the erroneous jury instruction. This disposition renders moot the challenge to the alleged sentencing error.
¶2 Petitioner was convicted and sentenced for attempted second-degree murder. After briefing was complete in his appeal, but before this court ruled on the merits of petitioner’s appeal, this court issued its opinion in Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009), which held that the giving of the standard jury instruction on manslaughter in a case of this nature was fundamental error. The Florida Supreme Court has recently affirmed the decision of this court in State v. Montgomery, 39 So.3d 252, 2010 WL 1372701 (Fla.2010). This case is similar to that of Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009). We therefore grant the petition and reverse the conviction and sentence and remand to the trial court for further proceedings. The challenge to the alleged sentencing error is dismissed as moot.
¶3 PETITION GRANTED IN PART.