JERRY PHARISIEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2015-10-30
No. 2D10-959
NORTHCUTT, KHOUZAM, and CRENSHAW, JJ., Concur.
176 So. 3d 1284 Florida District Court of Appeal, Second District (2015) Positive Treatment
Cited by 1 case
Topics
Manslaughter By Act Jury Instruction Manslaughter By Act Fundamental Error Lesser Included Offense

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Opinion of the Court
PER CURIAM.

*1285ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

Upon remand from the Florida Supreme Court, we reconsider Jerry Pharisien’s convictions for second-degree murder with a firearm and attempted second-degree murder with a firearm' in light of the subsequent decisions in Griffin v. State, 160 So.3d 63 (Fla.2015), and Daniels v. State, 121 So.3d 409 (Fla.2013). Because the 2008 standard jury instruction on manslaughter by act suffers from the same infirmity found erroneous in State v. Montgomery, 39 So.3d 252 (Fla.2010), the jury instruction given at Pharisien’s trial was erroneous. See Daniels, 121 So.3d at 419. And because Pharisien was convicted of second-degree murder, which is only one step removed from the necessarily lesser-included offense of manslaughter, this error was fundamental. Id. at 415, 419. The fact that Pharisien’s defense was that hé was simply not present at the scene of the shootings does not change this result. See Griffin, 160 So.3d at 67 (determining that “a sole defense of misidentification does not concede or fail to place in dispute intent or any other element of the crime charged except identity when the offense charged is an unlawful homicide”). Accordingly, we reverse and remand to the circuit court for a new trial.

Reversed and remanded for a new trial.

NORTHCUTT,1 KHOUZAM, and CRENSHAW, JJ., Concur.

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  • State v. Pharisien (Fla. 2d DCA 2019)
    …tent or any other element of the crime charged except identity when the offense charged is an unlawful homicide"). Accordingly, we reverse and remand to the circuit court for a new trial. Reversed and remanded for a new trial. Pharisien v. State, 176 So. 3d 1284, 1285 (Fla. 2d DCA 2015). During the remand proceedings in the trial court, both the State and defense counsel indicated on the record that our 2015 decision reversed only the conviction for second-degree murder and left the attempt conviction un…

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