MILVIO COISCOU, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Milvio Coiscou appealed his conviction for attempted second-degree murder after shooting a victim with a BB gun. The Florida Supreme Court had recently clarified that attempted voluntary manslaughter requires proof of intent to commit the act causing death, not intent to kill the victim. The trial court's jury instruction, which predated this clarification, was defective, and the conviction is reversed for a new trial.
The jury instruction was defective because the Florida Supreme Court subsequently clarified in State v. Montgomery that the relevant intent for attempted voluntary manslaughter is the intent to commit the act causing death, not the intent to kill the victim. Because the conviction was only one step removed from the necessarily included offense of manslaughter, the error is per se reversible.
[1] A jury instruction for attempted voluntary manslaughter is erroneous if it requires the state to prove the defendant intended to cause the victim's death, rather than int…
[2] An erroneous jury instruction on a lesser-included offense that is only one step removed from the offense for which the defendant was convicted is per se reversible error…
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Join FLexlaw to unlock all legal intelligence“[T]he relevant intent is the intent to commit an act which caused the death, ... not ... that the defendant intended to kill the victim.”
Establishes the correct legal standard for attempted voluntary manslaughter intent after Montgomery clarification
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Join FLexlaw to unlock all legal intelligenceCoiscou shot the victim in the eye with a BB gun, believing the safety was on. The State charged him with attempted first-degree murder with a deadly …
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Milvio Coiscou appeals his conviction of attempted second-degree murder after he shot the victim in the eye with a BB gun, thinking the safety was on.
The State charged Coiscou with attempted first-degree murder with a deadly weapon. The trial court instructed the jury on attempted premeditated murder, and the lesser-included offenses of attempted second-degree murder and attempted voluntary manslaughter by act. The attempted voluntary manslaughter charge given by the trial court was the then existing standard:
Milvio A. Coiscou committed an act or procured the commission of an act, which was intended to cause the death of O.F. (A Minor), and would have resulted in the death of O.F. (A Minor), except that someone prevented Milvio A. Coiscou from killing O.F. (A Minor) or he failed to do so.
See Fla. Std. Jury Instr. (Crim.) 7.7 (2007) (emphasis added).
Subsequent to the trial of this case, the Florida Supreme Court disapproved that portion of the instruction which requires the State to prove the defendant committed an act “which was intended to cause the death” of the victim. State v. Montgomery, 39 So.3d 252, 257 (Fla.2010) (“[T]he relevant intent is the intent to commit an act which caused the death, ... not ... that the defendant intended to kill the victim.”); see also In re Amends. to Std. Jury Instrs. in Crim. Cases—Instr. 7.7, 41 So.3d 853 (Fla.2010) (simultaneously amending standard jury instruction 7.7 on an interim basis, striking the language requiring an intent to kill). Of course, the trial court did not have the benefit of Montgomery at the time of trial. Although the defendant did not object to the giving of this jury charge in the trial court, the State properly concedes that because the offense for which the defendant was adjudged by the jury was only one-step removed from the necessarily included offense of manslaughter, the error is per se reversible. See Montgomery, 39 So.3d at 259 (citing Pena v. State, 901 So.2d 781 (Fla.2005)).
We note this Court, in Valdes-Pino v. State, 23 So.3d 871 (Fla. 3d DCA 2009), certified decisional conflict with the First District Court of Appeal’s opinion in Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009). In light of the Florida Supreme Court’s approval of Montgomery, we conclude Valdes-Pino is no longer controlling precedent in this District.
Reversed and remanded for a new trial.
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Amos Augustus Williams v. State, 123 So. 3d 23 (Fla. 2013)…rial to what the jury must consider to convict and concerns a matter in dispute, Reed, 837 So. 2d at 369, the error is fundamental. Montgomery, 39 So. 3d at 259. . See, e.g., Gonzalez v. State, 40 So. 3d 60, 62 (Fla. 2d DCA 2010); Coiscou v. State, 43 So. 3d 123, 124 (Fla. 3d DCA 2010). . We also decline the State’s invitation in this case to revisit our Montgomery decision. We have reconfirmed the holding in Montgomery in subsequent cases, such as Bonilla v. State, 75 So. 3d 233 (Fla.2011), where we expla…
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Gordon v. State, 126 So. 3d 292 (Fla. 3d DCA 2011)…te v. Montgomery, 39 So. 3d 252 (Fla.2010). Based upon the language of the jury instruction, together with the Supreme Court’s decision in Montgomery and this Court’s decisions in Bass v. State, 45 So. 3d 970 (Fla. 3d DCA 2010) and Coiscou v. State, 43 So. 3d 123 (Fla. 3d DCA 2010), we agree. Accordingly, we reverse the defendant’s conviction and sentence for attempted second-degree murder and remand for a new trial on that charge. See Burrows v. State, 62 So. 3d 1258 (Fla. 3d DCA 2011). However, we certify…
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Burrows v. State, 62 So. 3d 1258 (Fla. 3d DCA 2011)…by act, which erroneously required the jury to find that the defendant “committed an act which was intended to cause the death” of the victim. Based on this Court’s decisions in Bass v. State, 45 So. 3d 970 (Fla. 3d DCA 2010), and Coiscou v. State, 43 So. 3d 123 (Fla. 3d DCA 2010), we agree and, therefore, reverse the defendant’s conviction and sentence for attempted second-degree murder and remand for a new trial on that charge. However, we certify direct conflict with the Fourth District’s decision in Wil…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Pena v. State, 901 So. 2d 781 (Fla. 2005)
- In re Amendments TO Standard Jury Instructions IN Crim. Cases - Instruction 7.7, 41 So. 3d 853 (Fla. 2010)
- Valdes-Pino v. State, 23 So. 3d 871 (Fla. 3d DCA 2009)