ANTONIO BASS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Antonio Bass appeals his conviction for two counts of attempted second degree murder, arguing the trial court erred in instructing the jury on the elements of attempted voluntary manslaughter. The appellate court agrees and reverses, finding the instruction conflicted with the Florida Supreme Court's holding in Montgomery v. State that manslaughter by act does not require proof of intent to kill.
Yes. The trial court's jury instruction on attempted voluntary manslaughter was erroneous because it required proof of intent to kill, which conflicts with the Florida Supreme Court's holding in Montgomery that the crime of manslaughter by act does not require such intent. The conviction and sentence are reversed.
[1] A standard jury instruction for attempted manslaughter by act is fundamentally erroneous if it imposes an additional element of intent to kill.
[2] Appellate counsel is ineffective for failing to argue that a standard jury instruction for attempted manslaughter by act constitutes fundamental error when that instructi…
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Join FLexlaw to unlock all legal intelligence“To prove the crime of attempted voluntary manslaughter, the State must prove the following elements beyond a reasonable doubt: That the defendant committed an act, which was intended to cause the death of [the victim] and would have resulted in the death of [the victim] except that someone prevented the defendant from killing [the victim] or he failed to do so.”
The erroneous jury instruction at issue, which required proof of intent to kill
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Join FLexlaw to unlock all legal intelligenceBass was charged with two counts of attempted first degree murder with a firearm. The trial court instructed the jury on lesser-included offenses, inc…
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Antonio Bass (“the defendant”) appeals his conviction and sentence for two counts *971of attempted second degree murder. We reverse.
The State charged and tried the defendant for two counts of attempted first degree murder with a firearm. The trial court instructed the jury on lesser-included offenses, including second degree murder and voluntary manslaughter. The jury returned a guilty verdict of the lesser-included offense of attempted second degree murder under the two counts. Thereafter, the trial court sentenced the defendant to life in prison.
The defendant appeals from his conviction and sentence, alleging various errors, only one of which merits discussion. The defendant asserts that the trial court fundamentally erred when it instructed the jury on the elements of proof for attempted voluntary manslaughter. On the other hand, the State contends that the trial court properly instructed the jury on all lesser-included offenses. We agree with the defendant, and reverse.
The trial court instructed the jury that:
To prove the crime of attempted voluntary manslaughter, the State must prove the following elements beyond a reasonable doubt: That the defendant committed an act, which was intended to cause the death of [the victim] and would have resulted in the death of [the victim] except that someone prevented the defendant from killing [the victim] or he failed to do so.
The defendant relies on Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), to support his position that the instruction was erroneous. The Florida Supreme Court has since reviewed Montgomery and agreed with the First District that the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim. State v. Montgomery, 39 So.3d 252 (Fla.2010). The Court simultaneously amended the manslaughter standard jury instruction. In re amends. to Standard Jury Instructions in Criminal Cases — Instruction 7.7, 41 So.3d 853, (Fla.2010).
Accordingly, based on Montgomery, we find error in the trial court’s jury instruction on attempted voluntary manslaughter, and reverse the defendant’s conviction and sentence.
Reversed and remanded for a new trial.
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Houston v. State, 87 So. 3d 1 (Fla. 2d DCA 2011)…the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof.” Nothing in this statutory scheme suggests that the crime of attempted manslaughter requires an intent to kill. See Bass v. State, 45 So. 3d 970, 971 (Fla. 3d DCA 2010) (reviewing jury instruction on attempted voluntary manslaughter that included element that “defendant committed an act, which was in [*3] tended to cause the death of [the victim]” and finding error, “based on Montgomery,” in…
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Gordon v. State, 126 So. 3d 292 (Fla. 3d DCA 2011)…onal element requiring proof of intent to kill. See State 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,…
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Burrows v. State, 62 So. 3d 1258 (Fla. 3d DCA 2011)…the standard jury instruction for attempted manslaughter 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 di…
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- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- In re Amendments TO Standard Jury Instructions IN Crim. Cases - Instruction 7.7, 41 So. 3d 853 (Fla. 2010)