HERBERT TYRONE JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a second-degree murder conviction because the trial court's standard jury instruction on manslaughter by act constituted fundamental error under State v. Montgomery, which held the instruction incorrectly stated the mental state required for that offense.
The standard jury instruction on manslaughter by act constitutes fundamental error because it requires proof of intent to kill rather than the correct standard of intent to commit an act causing death.
[1] The standard jury instruction on manslaughter by act constitutes fundamental error when it requires the State to prove intent to kill rather than intent to commit an act…
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Join FLexlaw to unlock all legal intelligenceHerbert Johnson was convicted of second-degree murder with a firearm. The trial court instructed the jury using the standard instruction on the necess…
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Herbert Johnson appeals his judgment and sentence for second-degree murder with a firearm, arguing that the trial court committed fundamental error when it gave the standard jury instruction on the necessarily lesser-included offense of manslaughter by act. We are required to reverse based on the Florida Supreme Court’s recent decision in State v. Montgomery, — So.3d —, —, 35 Fla. L. Weekly S204, S204 (Fla. Apr. 8, 2010), in which the court held that the use of the standard jury instruction on manslaughter constituted fundamental error. The Montgomery court reasoned that the crime of manslaughter by act requires the State to prove that the defendant intended to commit an act which causes death, but the standard jury instruction on manslaughter by act incorrectly requires the State to prove that the defendant intended to kill the victim. Id. at —. Because the erroneous instruction was given at Johnson’s trial, he is entitled to a new trial.
Johnson also argues that the trial court was required to give a jury instruction on manslaughter by culpable negligence. Because he will have an opportunity at his retrial to request such an instruction if he wishes, we need not determine at this time whether the failure to give the instruction absent a request or objection at his first trial was fundamental error.
Accordingly, we reverse Johnson’s judgment and sentence and remand this case for a new trial.
NORTHCUTT and KELLY, JJ., Concur.