DESMOND T. KENNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenges his conviction for second-degree murder on several grounds, only one of which merits discussion. Appellant contends that the jury instruction for the lesser-included offense of manslaughter by act was fundamentally flawed, requiring a new trial. We agree and reverse.
Appellant was charged and tried for second-degree murder. In addition to instructing the jury on the second-degree murder charge, the trial judge also instructed the jury, without objection, using the then-standard instruction for manslaughter by act, a category one lesser-included offense of the murder charge. Subsequent to the trial, our supreme court held that the use of this instruction constitutes fundamental error. State v. Montgomery, 39 So.3d 252 (Fla.2010). Although the State concedes that a new trial is required if Montgomery is applicable, it attempts to distinguish it based on Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), which distinguished Montgomery on two grounds, neither of which are applicable here. Here, the jury was not instructed on manslaughter by culpable negligence because defense counsel did not believe that the facts supported the instruction. Nor did counsel invite the error here in the manner identified by the court in Joyner. Accordingly, Montgomery compels a new trial.
REVERSED AND REMANDED.
PALMER, TORPY and COHEN, JJ., concur.
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Citator
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Desmond T. Kenner v. State, 208 So. 3d 271 (Fla. 5th DCA 2016)…g found guilty. Desmond Kenner (“Appellant”) appeals a conviction of second-degree murder with a firearm following his second jury trial on the same charges. His first conviction was reversed because of an improper jury instruction. Kenner v. State, 48 So. 3d 117 (Fla. 5th DCA 2010). In the present appeal, Appellant raises four issues. We affirm his conviction and specifically affirm the denial of Appellant’s motion for judgment of acquittal, the admission of the victim’s dying declaration that Appellant sho…
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De'Javar Cashe Davis v. State, 56 So. 3d 128 (Fla. 5th DCA 2011)…on manslaughter by culpable negligence. And, in a similar appeal regarding the issuance of an erroneous manslaughter by act instruction, our court rejected the two other distinguishing factors relied upon by the court in Joyner. In Kenner v. State, 48 So. 3d 117 (Fla. 5th DCA 2010), the trial court improperly instructed the jury on manslaughter by act. Defense counsel did not specifically agree to the instruction or rely on it in closing arguments. Kenner was convicted as charged of second-degree murder. Ou…
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Joyner v. State, 41 So. 3d 306 (Fla. 1st DCA 2010)