       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 06, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D09-958
                         Lower Tribunal No. 03-25149
                             ________________


                                Baron Moore,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Julio E.
Jimenez, Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant
Attorney General, for appellee.


Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.

                                 ON REMAND

     ROTHENBERG, J.
      Upon remand by the Florida Supreme Court, we reverse Baron Moore’s

conviction and sentence for second degree murder and remand for a new trial.

      In State v. Montgomery, 39 So. 3d 252 (Fla. 2010), the Florida Supreme

Court found that the standard jury instruction for manslaughter by act was

erroneous and that the erroneous instruction was fundamental error where

Montgomery was convicted of second-degree murder, which is only one step

removed from manslaughter. Id. at 258. In Haygood v. State, 109 So. 3d 735 (Fla.

2013), the Florida Supreme Court addressed whether the trial court’s fundamental

error in giving the erroneous jury instruction was cured by also giving an

instruction on manslaughter by culpable negligence. The Court concluded that the

erroneous instruction was not cured by giving a culpable negligence instruction if

the evidence supports manslaughter by act, the evidence does not support

manslaughter by culpable negligence, and where the defendant is convicted of

second-degree murder. Haygood, 109 So. 3d at 737.

      Thereafter, in Daniels v. State, 121 So. 3d 409 (Fla. 2013), the Florida

Supreme Court concluded that, although the manslaughter by act instruction in

Daniels differed from the manslaughter by act instruction found to be erroneous

and fundamental error in Montgomery, and the Daniels instruction was

preliminarily approved by the Florida Supreme Court post-Montgomery, it




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suffered the same infirmity as the Montgomery instruction, and must suffer the

same fate as the erroneous Montgomery instruction. Daniels, 121 So. 3d at 419.

      Lastly, in Griffin v. State, 40 Fla. L. Weekly S135, S136-37 (Fla. Mar. 12,

2015), the Florida Supreme Court specifically rejected the State’s argument that

the Court’s holdings in Montgomery, Daniels, and Haygood do not apply where

the defendant’s sole defense at trial was misidentification. In Griffin, the State

contended, and the Second District Court of Appeal concluded, that because

misidentification was Griffin’s sole defense at trial, the element of intent was not

in dispute and because “fundamental error in a jury instruction only occurs where

the instruction pertains to a disputed element of the offense and the error is

pertinent or material to what the jury must consider to convict,” no fundamental

error had occurred. Griffin v. State, 128 So. 3d 88, 89 (Fla. 2d DCA 2013)

(citations omitted). In rejecting this argument and quashing the Second District’s

opinion, the Florida Supreme Court noted that Griffin did not concede the element

of intent and he had no affirmative obligation to dispute intent or any element of

the crime. Griffin, 40 Fla. L. Weekly at S137. A defendant may sit mute as it is

the State’s burden to prove all of the elements. Id. The fact that a defendant

contests one of the elements at trial does not mean he has conceded the remaining

elements the State must prove. Id.




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      Based on these holdings, we reverse Moore’s conviction and sentence for

second-degree murder and remand for a new trial because Moore’s jury was

provided with the same “infirm” manslaughter by act instruction addressed in

Daniels, which the Florida Supreme Court has determined constitutes fundamental

error; the evidence supports manslaughter by act and it does not support culpable

negligence; Moore did not concede that he intended to kill the victim; and Moore

was convicted of second-degree murder.

      Reversed and remanded.




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