TODD ALLEN MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a jury instruction on attempted voluntary manslaughter constituted fundamental error because it improperly defined the required intent. The court affirmed the conviction for conspiracy to tamper with a witness.
[1] A jury instruction on attempted voluntary manslaughter is fundamentally erroneous if it requires proof that the defendant intended to cause the victim's death, rather tha…
[2] A jury instruction on attempted voluntary manslaughter must include definitions of "justifiable" and "excusable" homicide.
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Join FLexlaw to unlock all legal intelligenceTodd Moore was convicted of attempted second-degree murder with a firearm and conspiracy to tamper with a witness. The jury instruction on the lesser-…
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Todd Moore appeals from the judgment and sentence entered after a jury found him guilty of attempted second-degree murder with a firearm and conspiracy to tamper with a witness. We affirm in part and reverse in part.
Moore raises three issues on appeal, only one of which merits discussion. The State properly concedes the jury instruction on the lesser-included offense of attempted voluntary manslaughter constituted fundamental error. See State v. Montgomery, 39 So.3d 252 (Fla.2010); see also Williams v. State, —So.3d -, 2013 WL 535449, 38 Fla. L. Weekly S99 (Fla. Feb. 14, 2013). The instruction provided that the State must prove the defendant committed an act which was intended to cause the death of the victim — essentially the same instruction held to be improper in Montgomery. 1 The current instruction — approved by the supreme court after Moore’s trial took place — provides that the State must prove the defendant had an intent to commit an act which would have caused the victim’s death. In re Std. Jury Instrs. in Crim. Cases—Instr. 6.6, — So.3d-, 2013 WL 2349589, 38 Fla. L. Weekly D355 (Fla. May 30, 2013).2
The remaining issues were either not preserved for appeal or are without merit. Accordingly, we affirm Moore’s conviction for conspiracy to tamper with a witness. We reverse his conviction for attempted *283second-degree murder with a firearm and remand for a new trial.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
LAWSON and EVANDER, JJ., concur.