JEROME J. FERRIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed convictions for attempted second degree murder (counts IX and X) because the trial court committed fundamental error by instructing the jury on the lesser included offense of attempted voluntary manslaughter, which is only one step removed from the charged offense.
Giving a standard jury instruction on attempted voluntary manslaughter constitutes fundamental error when the defendant is convicted of attempted second degree murder, an offense only one step removed from attempted manslaughter.
[1] Instructing a jury on attempted voluntary manslaughter as a lesser included offense constitutes fundamental error when the charged offense is attempted second degree murd…
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Join FLexlaw to unlock all legal intelligenceFerrier was convicted of six counts of attempted first degree murder and two counts of attempted second degree murder. At trial, the court instructed …
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Jerome Ferrier appeals his convictions and sentences for six counts of attempted first degree murder and two counts of attempted second degree murder. With respect to counts IX and X, counts alleging attempted second degree murder, at trial, the trial court gave the standard jury instruction for the lesser included offense of attempted voluntary manslaughter. That instruction provided that one of the elements of attempted voluntary manslaughter is that Ferrier committed an act which was intended to cause the death of the victim.
Recently, the Florida Supreme Court expressly approved our decision in Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009), and held that “giving the standard jury instruction on attempted manslaughter by act ... constitutes fundamental error where the defendant is convicted of an offense not more than one step removed from attempted manslaughter.” Williams v. State, — So.3d - (Fla.2013); see also State v. Montgomery, 39 So.3d 252 (Fla.2010). Accordingly, we hold that the trial court committed fundamental error by giving the jury the standard instruction for the lesser included offense of voluntary manslaughter on the attempted second degree murder charges found in counts IX and X. Thus, we reverse the convictions under counts IX and X and remand for a new trial on those counts. We affirm all other issues raised on appeal.
AFFIRMED, in part, REVERSED, in part, and remanded for further proceedings.
VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.
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Citator
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009)