CURTIS W. BAILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Bailey was convicted of two counts of attempted first-degree murder and three counts of attempted second-degree murder. On appeal, Bailey challenged the jury instructions for the lesser-included offense of attempted second-degree murder as containing the same fundamental error identified in State v. Montgomery. The court agreed and reversed the three attempted second-degree murder convictions while affirming the two attempted first-degree murder convictions.
The jury instruction on attempted second-degree murder contained the same fundamental error identified in State v. Montgomery because it failed to adequately distinguish between the intent required for attempted second-degree murder and attempted voluntary manslaughter. Bailey's three convictions for attempted second-degree murder are reversed, while his two convictions for attempted first-degree murder are affirmed.
[1] A jury instruction on attempted second-degree murder that fails to properly distinguish it from attempted voluntary manslaughter constitutes fundamental error.
[2] A jury instruction is fundamentally erroneous if it leads the jury to believe it must convict of attempted second-degree murder when the evidence might support attempted…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As instructed, if the jury found no intent to kill, it may have believed it was required to find Bailey guilty of the offense of attempted second-degree murder, as opposed to attempted voluntary manslaughter. Thus, the instruction here was fundamental error, as in Montgomery.”
Establishes the core holding that the jury instruction created fundamental error by forcing conviction on a lesser charge when intent to kill was not found
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Join FLexlaw to unlock all legal intelligenceBailey was charged with five counts of attempted first-degree murder with a firearm. The trial court instructed the jury on the lesser-included offens…
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The appellant, Curtis Bailey, was charged with five counts of attempted first-degree murder with a firearm. The jury was instructed, without objection, in accord with the standard jury instructions on attempted first-degree murder and the lesser-included offenses of attempted second-degree murder and attempted voluntary manslaughter. The jury found Bailey guilty on two counts of attempted first-degree murder, as charged, and guilty on three counts of the lesser-included offense of attempted second-degree murder. Mr. Bailey argues on appeal that his three convictions for attempted second-degree murder are fundamentally erroneous because the jury instruction on the lesser-included offense of attempted voluntary manslaughter included the same defect held to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla.2010). We agree and reverse Bailey’s three convictions for attempted second-degree murder. We, however, affirm without discussion the two convictions for attempted first-degree murder.
The trial court instructed the jury on the lesser-included offenses as follows:
To prove the crime of [attempted] second-degree murder, the State must prove the following two elements beyond a reasonable doubt:
Curtis William Bailey intentionally committed an act which would have resulted in the death of [the victims named in Counts I through V] except that someone prevented Curtis William Bailey from killing ... or he failed to do so.
To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt:
Curtis William Bailey committed an act which was intended to cause the death of [the victims named in Counts I through V]....
As instructed, if the jury found no intent to kill, it may have believed it was required to find Bailey guilty of the offense of attempted second-degree murder, as opposed to attempted voluntary manslaughter. Thus, the instruction here was fundamental error, as in Montgomery.
Under the authority of this court’s well-established precedent, we reverse Bailey’s convictions for attempted second-degree murder and remand for a new trial on those charges. See Herring v. State, 43 So.3d 823 (Fla. 1st DCA 2010); Rushing v. State, 133 So.3d 943 (Fla. 1st DCA 2010); Sharpe v. State, 39 So.3d 342 (Fla. 1st DCA 2010); Horne v. State, 23 So.3d 834 *947(Fla. 1st DCA 2009); Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009).
Affirmed in part and reversed in part.
WEBSTER and MARSTILLER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009)
- Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010)
- Rushing v. State, 133 So. 3d 943 (Fla. 1st DCA 2010)
- Terence C. Atkins v. State, 43 So. 3d 823 (Fla. 1st DCA 2010)
- Lamonte Herring v. State, 43 So. 3d 823 (Fla. 1st DCA 2010)
- Horne v. State, 23 So. 3d 834 (Fla. 1st DCA 2009)
- Raynard D. Wilson v. State, 23 So. 3d 834 (Fla. 1st DCA 2009)