court’s decision in State v. Montgomery, 39 So.3d 252 (Fla.2010), which held that the then standard manslaughter-by-act instruction was fundamentally erroneous because it improperly contained an intent-to-kill element. In Montgomery, the Florida Supreme Court approved of the First District’s decision in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). Furthermore, prior to the filing of the initial brief in Deravil, the First District held that the standard attempted manslaughter-by-act instruction was fundamentally erroneous. Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009). We therefore conclude that appellate counsel rendered ineffective assistance in failing to argue that the attempted manslaughter by act instruction constituted fundamental error. See Betts, 100 So.3d at 80 (<HOLDING>). Because a new appeal would be redundant in
holding offense of attempted seconddegree murder exists where there is evidence defendant intended to kill holding that the trial courts erroneous instruction on the nonexistent included offense of attempted reckless manslaughter was harmless beyond a reasonable doubt where the jury reached a unanimous guilty verdict as to the charged offense of attempted murder in the second degree holding that appellate counsel was ineffective in failing to argue based on the first districts decision in montgomery that the standard attempted manslaughterbyact instruction was fundamentally erroneous where betts was charged with attempted firstdegree premeditated murder and convicted of the necessary lesserincluded offense of attempted seconddegree murder holding that conspiracy to commit murder is not lesserincluded offense of firstdegree murder holding that tendering of assault instruction in attempted capital murder case was sufficient under rule 5a18 to alert the trial judge and the commonwealth that simple assault is a lesserincluded offense of attempted capital murder and that the defendant believed sufficient evidence supported granting the instruction