Summary
finding fundamental error in the omission of an instruction on manslaughter by act while instructing on manslaughter by culpable negligence
Summary of this case from Wade v. StateOpinion
No. 1D12–1009.
2013-02-27
Joe Lewis JENKINS, Appellant, v. STATE of Florida, Appellee.
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant, Joe Lewis Jenkins, challenges his convictions for second-degree murder and attempted second-degree murder. Appellant's conviction for second-degree murder is reversed because the trial court only instructed the jury on manslaughter by culpable negligence. Bradshaw v. State, 61 So.3d 1266, 1266 (Fla. 3d DCA 2011) (holding that instructing the jury on the lesser included offense of manslaughter by instructing only as to the culpable negligence prong and omitting entirely the manslaughter by act aspect of the crime was fundamental error); Bolin v. State, 8 So.3d 428, 430 (Fla. 2d DCA 2009) (same). Appellant's conviction for attempted second-degree murder is also reversed because the trial court used a jury instruction for attempted manslaughter by act that required the jury to find that Appellant had the intent to kill the victim. Lamb v. State, 18 So.3d 734, 734 (Fla. 1st DCA 2009); but see Williams v. State, 40 So.3d 72, 75 (Fla. 4th DCA 2010), rev. pending,64 So.3d 1262 (Fla.2011).
REVERSED and REMANDED.