JAVIER BELMONTES LOPEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Fourth District Court of Appeal reversed its prior affirmance of Lopez's conviction for attempted second degree murder after the Florida Supreme Court quashed the controlling precedent and held that giving a jury instruction on attempted manslaughter constituted fundamental error when the defendant was convicted of a closely related lesser included offense.
The trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act. Accordingly, Lopez's conviction for attempted second degree murder with a firearm is reversed and the case is remanded for a new trial.
[1] Giving the standard jury instruction on attempted manslaughter by act constitutes fundamental error when a defendant is convicted of a crime no more than one step removed…
[2] A conviction for attempted second degree murder with a firearm is one step removed from attempted manslaughter by act for purposes of determining fundamental error in jur…
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Join FLexlaw to unlock all legal intelligence“[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.”
Establishes the Florida Supreme Court's holding in Williams II that is the basis for reversing Lopez's conviction.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJavier Belmontes Lopez was convicted of attempted second degree murder with a firearm as a lesser included offense of attempted first degree murder wi…
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ON MOTION FOR REHEARING AND CLARIFICATION
We grant appellant’s motion for rehearing and clarification of this court’s March 5, 2014 opinion and substitute the following in its place.
The defendant appealed from a conviction and sentence for attempted second degree murder with a firearm as a lesser included offense of attempted first degree murder with a firearm. This court affirmed. Lopez v. State, 55 So.3d 707 (Fla. 4th DCA 2011). Our affirmance was based on our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“Williams I”). Williams I held that the giving of the standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder.
The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The Court held:
[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.
Id. at 27. The Court then, by order, accepted jurisdiction of this case, quashed this court’s opinion, and remanded for reconsideration upon application of its opinion in Williams II. See Lopez v. State, No. SC11-502, 2014 WL 980154 (Fla. Jan. 24, 2014).
*489In light of Williams II, we hold that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act. We reverse and remand for a new trial on the charge of attempted second degree murder with a firearm. The trial court also should consider a revised scoresheet and resen-tence on any remaining counts if the outcome of the proceedings on remand would result in a recalculated sentencing score-sheet.
Reversed and remanded for proceedings consistent with this opinion.
CIKLIN, FORST and KLINGENSMITH, JJ„ concur.
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Cited By
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Quinten Walden v. State, 162 So. 3d 84 (Fla. 4th DCA 2014)…r a new trial. Petition granted; remanded for a new trial. STEVENSON, LEVINE and KLINGENSMITH, JJ., concur. . See, e.g., Rodriguez v. State, 139 So. 3d 489 (Fla. 4th DCA 2014); Fenster v. State, 141 So. 3d 232 (Fla. 4th DCA 2014); Lopez v. State, 138 So. 3d 488 (Fla. 4th DCA 2014); Davis v. State, 138 So. 3d 489 (Fla. 4th DCA 2014); Sessions v. State, 137 So. 3d 1167 (Fla. 4th DCA 2014); Coriolan v. State, 137 So. 3d 1080 (Fla. 4th DCA 2014); Cunningham v. State, 162 So. 3d 1, 2014 WL 714714, 39 Fla. L. We…
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Gibson v. State, 152 So. 3d 696 (Fla. 4th DCA 2014)…have granted a new trial in a number of direct appeal cases that were initially affirmed based on our decision in Williams. Rodriguez v. State, 139 So. 3d 489 (Fla. 4th DCA 2014); Fenster v. State, 141 So. 3d 232 (Fla. 4th DCA 2014); Lopez v. State, 138 So. 3d 488 (Fla. 4th DCA 2014); Davis v. State, 138 So. 3d 489 (Fla. 4th DCA 2014); Sessions v. State, 137 So. 3d 1167 (Fla. 4th DCA 2014); Coriolan v. State, 137 So. 3d 1080 (Fla. 4th DCA 2014); Cunningham v. State, -So. 3d-, 2014 WL 714714, 39 Fla. L. Weekly…
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Ednere Francois v. State, 151 So. 3d 496 (Fla. 4th DCA 2014)…cond degree murder and remand for a new trial. Petition granted. STEVENSON, TAYLOR and GERBER, JJ., concur. . See, e.g., Rodriguez v. State, 139 So. 3d 489 (Fla. 4th DCA 2014); Fenster v. State, 141 So. 3d 232 (Fla. 4th DCA 2014); Lopez v. State, 138 So. 3d 488 (Fla. 4th DCA 2014); Davis v. State, 138 So. 3d 489 (Fla. 4th DCA 2014); Sessions v. State, 137 So. 3d 1167 (Fla. 4th DCA 2014); Coriolan v. State, 137 So. 3d 1080 (Fla. 4th DCA 2014); Cunningham v. State, - So. 3d -, 2014 WL 714714, 39 Fla. L. Week…
Authorities Cited
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- Amos Augustus Williams v. State, 123 So. 3d 23 (Fla. 2013)
- Lopez v. State, 55 So. 3d 707 (Fla. 4th DCA 2011)
- Yisrael v. State, 55 So. 3d 707 (Fla. 4th DCA 2011)