Opinion
Case No. 4D04-442.
Opinion filed May 4, 2005.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Stephen A. Rapp, Judge, L.T. Case No. 01-14398 CFA02.
Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
Appellant was charged with attempted first degree murder. Following a jury trial, he was convicted of attempted second degree murder. He contends it was fundamental error for the trial court to give the following, unobjected-to jury instruction:
In order to convict — to be guilty of attempted manslaughter, it is not necessary for the State to prove that the defendant has a premeditated intent to cause death, but, the State must prove that the actions of Mr. Cooper amount to culpable negligence.
Now culpable negligence has to do with the obligation and duty that each of us has to act reasonably towards others. If there is a violation of that duty; without any conscious intention to harm; we call that negligent. In other words, that's, if you drive your car in a careless, negligent manner and cause an accident, you didn't intend any harm. We call that negligence.
But that's not what we're talking about here. We're talking about culpable negligence. That's more than failure to use ordinary care for others. In order for negligence to be culpable, it must be gross and flagrant.
. . . .
We say the State has the burden of proof of showing Mr. Cooper committed an act of culpable negligence. That's what we mean. Then, the punishment is greater for attempted voluntary manslaughter, if in the course of committing that, there was some kind of weapon or firearm.
Attempted manslaughter by culpable negligence is a nonexistent crime. See State v. Brady, 685 So. 2d 984 (Fla. 5th DCA 1977); Taylor v. State, 444 So. 2d 931 (Fla. 1983). It is fundamental error to instruct the jury that it may find the defendant guilty of the crime of attempted manslaughter by culpable negligence. See Reid v. State, 656 So. 2d 191 (Fla. 1st DCA 1995).
The state distinguishes Reid on the basis that, in this case, appellant was not convicted of the non-existent crime and the conviction of attempted second degree murder is supported by the record. See Murray v. State, 491 So. 2d 1120 (Fla. 1986) (holding that although it was error to instruct on manslaughter by culpable negligence, the error did not require a new trial because there was sufficient evidence to support the conviction). As this court noted in Tape v. State, 661 So. 2d 1287, 1289 (Fla. 4th DCA 1995) (citing Mills v. Maryland, 486 U.S. 367, 376 (1988)), however, a criminal jury verdict must be set aside if it could be supported on one ground but not on another and the reviewing court is uncertain which of the two grounds was relied upon by the jury in reaching its verdict.
The state argues that any error was harmless because manslaughter is two steps removed from the crime charged. See State v. Abreau, 363 So. 2d 1063 (Fla. 1978) (holding that "[o]nly the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible." When the omitted instruction relates to an offense two or more steps removed, the error is harmless). The supreme court later clarified, however, that Abreau "stands for the rule that a refusal to instruct on a lesser included offense two steps removed from the offense for which defendant isconvicted is harmless error." See Acensio v. State, 497 So. 2d 640, 642 (Fla. 1986) (emphasis added). In this case, the court did not instruct on the next lesser-included offense of attempted manslaughter, but rather, instructed on the non-existent offense of attempted manslaughter by culpable negligence. Under Abreau and Acensio, this was fundamental error and appellant is entitled to a new trial.
REVERSED AND REMANDED.
KLEIN and TAYLOR, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.