ARIEL CUBELO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that an erroneous jury instruction on manslaughter by act, when the defendant is convicted of second-degree murder and the evidence supports manslaughter by act but not culpable negligence, constitutes fundamental error requiring reversal.
The defendant was convicted of second-degree murder. The jury received an erroneous standard jury instruction for manslaughter by act, which was not c…
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ON REMAND
Upon remand by the Florida Supreme Court for reconsideration based upon its decision in Haygood v. State, 109 So.3d 735 (Fla.2013), we reverse Ariel Cubelo’s conviction and sentence for second-degree murder with a weapon (a knife) and remand for a new trial.
In State v. Montgomery, 39 So.3d 252, 258 (Fla.2010), the Florida Supreme Court held that use of the standard jury instruction for manslaughter by act was erroneous and that giving the erroneous instruction was fundamental error where Montgomery was convicted of second-degree murder, which is only one step removed from manslaughter. In Haygood, the Florida Supreme Court addressed whether the trial court’s fundamental error in giving the erroneous manslaughter by act jury instruction was cured by also giving the jury an instruction on manslaughter by culpable negligence. The Court concluded that the erroneous manslaughter by act instruction was not cured by also giving the jury a manslaughter by culpable negligence instruction where the evidence supports a finding of manslaughter by act, the evidence does not support a finding of manslaughter by culpable negligence, and the defendant is convicted of second-degree murder. Haygood, 109 So.3d at 737.
Upon review, because Cubelo’s jury was provided with the same erroneous manslaughter by act instruction the Florida Supreme Court addressed in Montgomery and Haygood, the evidence presented supports manslaughter by act and does not support manslaughter by culpable negligence, and Cúbelo was convicted of second-degree murder, the error was fundamental error requiring a reversal. Accordingly, we reverse Cubelo’s conviction and sentence for second-degree murder and remand for a new trial.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Dominique, 215 So. 3d 1227 (Fla. 2017)…s manslaughter by act instruction. The court concluded that the error was not cured by the culpable negligence instruction because the evidence did support manslaughter by act but did not support manslaughter by culpable negligence. Cubelo v. State, 137 So. 3d 1193, 1193 (Fla. 3d DCA 2014).…
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Marshall v. State, 240 So. 3d 111 (Fla. 3d DCA 2018)…ould have sought and obtained relief from the Florida Supreme Court. See Cubelo v. State, 137 So. 3d 1019 (Fla. 2014) (table) (quashing Cubelo I, and remanding for reconsideration in light of Haygood II) (“Cubelo II”) ; see also Cubelo v. State, 137 So. 3d 1193 (Fla. 3d DCA 2014) (reversing the defendant’s conviction and sentence for second degree murder under Haygood II, and remanding for a new trial, upon remand from Florida Supreme Court) (“Cubelo III”). Under similar factual and procedural circumst…
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State v. Castro Guerra, 215 So. 3d 134 (Fla. 3d DCA 2017)…rder granting a new trial.4 Affirmed. . State v. Montgomery, 39 So. 3d 252 (Fla. 2010). . Quashed by the Florida Supreme Court in Cubelo v. State, 137 So. 3d 1019 (Fla. 2014) and, on remand, reversed and remanded for new trial in Cubelo v. State, 137 So. 3d 1193 (Fla. 3d DCA 2014). . Quashed by the Florida Supreme Court in Salonko v. State, 137 So. 3d 1022 (Fla. 2014) and, on remand, reversed and remanded for new trial in Salonko v. State, 162 So. 3d 40 (Fla. 1st DCA 2014). . We note, parenthetically, tha…
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Haygood v. State, 109 So. 3d 735 (Fla. 2013)