Opinion
No. 1D07-6218.
June 30, 2009.
An appeal from the Circuit Court for Duval County, John M. Merrett, Judge.
Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges his convictions for second degree murder and tampering with evidence. The appellant's arguments that the trial court erred in denying his motion for judgment of acquittal on the two charges are without merit, and his conviction for tampering with evidence is affirmed. However, because the trial court gave the standard jury instruction for the lesser-included offense of manslaughter by act, which an average juror would understand as requiring the additional element of intent to kill, the appellant's conviction for second degree murder is reversed and the case is remanded for further proceedings. See Montgomery v. State, 34 Fla. L. Weekly D360, ___ So.3d ___, 2009 WL 350624 (Fla. 1st DCA Feb. 12, 2009); Washington v. State, 34 Fla. L. Weekly D743, ___ So.3d ___, 2009 WL 975463 (Fla. 1st DCA April 13, 2009).
ALLEN, WOLF, and DAVIS, JJ., concur.