Berube v. State

Full title: LEO RICHARD BERUBE, Appellant, v. STATE OF FLORIDA, Appellee.

Court: DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Date published: Apr 4, 2012

Case No. 2D09-4385 (Fla. Dist. Ct. App. Apr. 4, 2012)

Opinion

Case No. 2D09-4385

04-04-2012

LEO RICHARD BERUBE, Appellant, v. STATE OF FLORIDA, Appellee.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Pinellas

County; Thane Covert, Judge.

James Marion Moorman, Public Defender,

and Cynthia J. Dodge, Assistant Public

Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Susan D. Dunlevy,

Assistant Attorney General, Tampa, for

Appellee.
ALTENBERND, Judge.

Leo Richard Berube appeals his judgment and life sentence for second-degree murder. This court reversed an earlier judgment and sentence and remanded the case for a new trial. See Berube v. State, 5 So. 3d 734, 736 (Fla. 2d DCA 2009). We affirm the new judgment and sentence in all respects. We write only to certify that this decision conflicts with Riesel v. State, 48 So. 3d 885 (Fla. 1st DCA 2010), concerning the jury instruction on the lesser included offense of manslaughter. For the reasons set forth in this court's decision in Daniels v. State, 72 So. 3d 227, 230 (Fla. 2d DCA 2011), this jury instruction did not constitute fundamental error.

Affirmed; conflict certified. SILBERMAN, C.J., and WALLACE, J., Concur.