Opinion
No. 1D09-0585.
August 25, 2010.
An appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.
James C. Banks of Banks Morris, P.A., Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
Lamonte Herring appeals his conviction and sentence for attempted second degree murder on several grounds. We find fundamental error and reverse under State v. Montgomery, 39 So.3d 252 (Fla. 2010), and Rushing v. State, ___ So.3d ___, (Fla. 1st DCA 2010), because the trial court gave the standard jury instruction on the lesser included offense of attempted voluntary manslaughter which erroneously includes intent to kill as an element of the crime.
REVERSED and REMED.
THOMAS, ROBERTS, and MARSTILLER, JJ., concur.