Petitioner, Dominique J. Tolbert, seeks another appeal, alleging ineffective assistance of appellate counsel. See generally Fla. R.App. P. 9.141(d). We deny the petition.1 See Contreras-Mayahua v. State, 40 So.3d 861, 863 (Fla. 4th DCA 2010) (finding that erroneous manslaughter by act instruction as lesser included offense of second-degree murder was not fundamental error where defendant was convicted of lesser included offense of manslaughter).
PETITION DENIED.
PALMER, ORFINGER and BERGER, JJ., concur.. We disregard the State's concession of error as it fails to recognize that Petitioner’s conviction for manslaughter makes the concerns that were noted in State v. Montgomery, 39 So.3d 252 (Fla.2010), inapplicable to the present case.