KAWUAN L. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In a case concerning the propriety of jury instructions in an attempted murder prosecution, the Fourth District Court of Appeal reversed its prior affirmance of a conviction for attempted second degree murder (as a lesser included offense of attempted first degree murder) after the Florida Supreme Court quashed the controlling precedent and held that giving a standard jury instruction on attempted manslaughter constitutes fundamental error.
The trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act, and therefore Davis's conviction for attempted second degree murder with a firearm must be reversed and the case 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, following an instruction on attempted manslaughter by act, may be reversed due to fundamental error.
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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.”
This is the controlling standard from the Florida Supreme Court's decision in Williams II that governs whether fundamental error occurred in Davis's trial.
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Join FLexlaw to unlock all legal intelligenceKawuan Davis was convicted of attempted second degree murder with a firearm as a lesser included offense of attempted first degree murder with a firea…
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ON MOTION FOR REHEARING AND CLARIFICATION
We grant appellant’s motion for rehearing and clarification of this court’s February 26, 2014 opinion. We substitute the following opinion.
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. Davis v. State, 69 So.3d 1021, 1022 (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. Id. at 74-75.
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 in this case, and remanded for reconsideration upon applica*490tion of its opinion in Williams II. Davis v. State, 134 So.3d 446 (Fla.2014).
In 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 the defendant on the remaining counts if the outcome of the proceedings on remand would result in a recalculated sentencing scoresheet.
Reversed and remanded for proceedings consistent with this opinion.
STEVENSON, TAYLOR and GERBER, JJ., concur.
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Quinten Walden v. State, 162 So. 3d 84 (Fla. 4th DCA 2014)…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. Weekly D451 (Fla. 4th DCA Feb. 26, 2014); Cox v. State…
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Gibson v. State, 152 So. 3d 696 (Fla. 4th DCA 2014)…l 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 D451 (Fla. 4th DCA Feb. 26, 2014); Cox v. State, 13…
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Ednere Francois v. State, 151 So. 3d 496 (Fla. 4th DCA 2014)…tion 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. Weekly D451 (Fla. 4th DCA Feb. 26, 2014); Cox v. State,…
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)
- Kawuan L. Davis v. State, 69 So. 3d 1021 (Fla. 4th DCA 2011)