DANNY T. JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed second-degree murder conviction despite erroneous jury instruction on manslaughter by act, because the jury was also instructed on the alternative lesser-included offense of manslaughter by culpable negligence.
An erroneous jury instruction on manslaughter by act does not constitute fundamental error when the jury is also instructed on manslaughter by culpable negligence as an alternative lesser-included offense.
[1] An erroneous jury instruction on manslaughter by act that imposes an intent-to-kill requirement does not constitute fundamental error when the jury is alternatively instr…
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Join FLexlaw to unlock all legal intelligenceDanny T. Jackson was convicted of second-degree murder. The jury received instructions on both manslaughter by act (which required intent to kill) and…
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Danny T. Jackson appeals his judgment and sentence for second degree murder arguing that State v. Montgomery, 39 So.3d 252 (Fla.2010), approving Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009), requires reversal because the jury was given the then-existing standard instruction on manslaughter by act which imposed upon the jury the requirement to find that the defendant intended to kill the victim. Subsequent to Montgomery, in Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), this court relied upon its previous decision in Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010), and ruled that fundamental *272error does not occur even if the jury was given the erroneous manslaughter by act instruction if the jury was also instructed on manslaughter by culpable negligence giving the jury the option of finding the appellant guilty of a lesser included offense which did not require an intent to kill. As in Joyner and Salonko, even though the erroneous instruction on manslaughter by act was given, the jury in this case was given the option of finding manslaughter by culpable negligence. We are bound to follow our decisions in Joyner and Salonko. See also Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010); Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010).
AFFIRMED.
HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur.
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Sullivan v. State, 50 So. 3d 33 (Fla. 1st DCA 2010)…sible the jury will base its decision only upon the elements of manslaughter by culpable negligence, which do not require a finding of intent to kill. Id. at 306; see also Riesel v. State, 48 So. 3d 885, 886-87 (Fla. 1st DCA 2010); Jackson v. State, 49 So. 3d 271, 271-72 (Fla. 1st DCA 2010); Salonko v. State, 42 So. 3d 801, 803 (Fla. 1st DCA 2010). Here, the trial court instructed the jury that manslaughter by act required an intent to kill, and gave no instruction on manslaughter by culpable negligence. A…
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Singh v. State, 36 So. 3d 848 (Fla. 4th DCA 2010)
- Joyner v. State, 41 So. 3d 306 (Fla. 1st DCA 2010)
- Salonko v. State, 42 So. 3d 801 (Fla. 1st DCA 2010)
- Baker v. McNEIL, 41 So. 3d 263 (Fla. 1st DCA 2010)
- Cubelo v. State, 41 So. 3d 263 (Fla. 3d DCA 2010)