          Supreme Court of Florida
                                    ____________

                                   No. SC10-1458
                                   ____________

                        AMOS AUGUSTUS WILLIAMS,
                                Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                               [February 14, 2013]
                             CORRECTED OPINION

LABARGA, J.

      This case is before the Court for review of the decision of the Fourth District

Court of Appeal in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010). In its

decision, the district court certified the following questions to be of great public

importance:

      (1) DOES THE STANDARD JURY INSTRUCTION ON
      ATTEMPTED MANSLAUGHTER CONSTITUTE
      FUNDAMENTAL ERROR?

      (2) IS ATTEMPTED MANSLAUGHTER A VIABLE OFFENSE IN
      LIGHT OF STATE V. MONTGOMERY, 39 So. 3d 252 [(Fla.
      2010)]?
See Williams, 40 So. 3d at 76.1 The Fourth District also certified express and

direct conflict with Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009). As

explained below, we answer both certified questions in the affirmative. We held in

State v. Montgomery, 39 So. 3d 252 (Fla. 2010), that giving the standard jury

instruction for the completed crime of manslaughter by act—which required the

jury to find that the defendant intended to kill the victim—is fundamental error

when the defendant is convicted of an offense not more than one step removed

from manslaughter because the manslaughter statute does not require an intent to

kill. Id. at 259. We now hold that giving the standard jury instruction on

attempted manslaughter by act—which also requires the jury to find the defendant

committed an act intended to cause death—similarly constitutes fundamental error

where the defendant is convicted of an offense not more than one step removed

from attempted manslaughter. The crime of attempted manslaughter by act does

not require the State to prove, or the jury to find, that the defendant intended to kill

the victim.


       1. We have jurisdiction. See art. V, § 3(b)(3), (4), Fla. Const. Although the
Fourth District certified the second question, the district court did not pass on that
question. Article V, section 3(b)(4), of the Florida Constitution provides this Court
with discretionary jurisdiction to review, in pertinent part, decisions in which the
district court “passes upon a question certified by it to be of great public
importance.” Our discretionary review jurisdiction is therefore based on the first
certified question and the certified conflict. As we explain below, because we have
jurisdiction based on the first certified question and the certified conflict, we
answer both certified questions.

                                          -2-
       Accordingly, we quash the decision of the Fourth District in Williams and

approve the decision in Lamb, in which the First District held that the trial court

committed fundamental error by giving the standard jury instruction on attempted

manslaughter by act because it added the element that the defendant “committed an

act intended to cause the death” of the victim. Lamb, 18 So. 3d at 735. We also

hold that the offense of attempted manslaughter remains a viable offense. We turn

first to the facts of this case.

                      FACTS AND PROCEDURAL HISTORY

       Amos Augustus Williams was charged with the attempted first-degree

murder of his ex-girlfriend Samantha Lindsay in 2006. The facts are set forth in

the opinion of the district court as follows:

               The defendant’s charges arise out of a brutal stabbing of his ex-
       girlfriend in her home while their ten-month-old daughter was present.
       The victim sustained multiple stab wounds to her face, stomach, chest,
       leg, and side. When the victim tried to flee from the defendant, he
       grabbed her by the neck of her clothes and continued to stab her. The
       defendant pulled the victim back into the house, locked the door, and
       stabbed her whenever she tried to move toward the door.
               The police apprehended the defendant later that night. The
       defendant told police that the victim tried to start a fight with him and
       wanted to cut him, he wrestled with the victim, and the victim fell on
       the knife. Later, he told the police that he did not know what
       happened because “the evil spirit just move upon me, evil.”

Williams, 40 So. 3d at 73. The defendant requested jury instructions on lesser

included offenses, including attempted manslaughter by act. The jury instruction

for attempted manslaughter by act, which is at issue in this case, was given

                                         -3-
consistent with the standard instruction as it existed in 2006 when the crime was

committed and as it currently exists, in pertinent part, as follows:

      To prove the crime of attempted voluntary manslaughter, the State
      must prove the following beyond a reasonable doubt: That Mr.
      Williams committed an act which was intended to cause the death of
      Ms. Lindsay and would have resulted in the death of Ms. Lindsay
      except that someone prevented [ ] Mr. Williams from killing Ms.
      Lindsay or he failed to do so . . . .

Williams, 40 So. 3d at 73 (emphasis added). The instruction also advised the jury:

      In order to convict [defendant] of attempted voluntary manslaughter,
      it is not necessary for the State to prove that the Defendant had a
      premeditated intent to cause death.

Id. (emphasis omitted). No defense objection was made to the instruction and

Williams was ultimately convicted of attempted second-degree murder, as well as

burglary of a dwelling with an assault or battery while armed and false

imprisonment with a weapon. Id.

      On appeal to the Fourth District, Williams contended that giving the

instruction constituted fundamental error similar to that found by this Court in

Montgomery as to the standard instruction for the completed offense of

manslaughter by act. Because the legal effect of this Court’s decision in

Montgomery is critical to determination of the certified questions and resolution of

the certified conflict in this case, that decision will be discussed first.

      In Montgomery, we recognized that the then-existing standard jury

instruction for the offense of manslaughter by act required the jury to find that the

                                           -4-
defendant “intentionally caused the death” of the victim. Montgomery, 39 So. 3d

at 257; see Fla. Std. Jury Instr. (Crim.) 7.7 (2006). We also recognized that section

782.07, Florida Statutes, did not require the jury to make such a finding. Section

782.07 provided in pertinent part as follows:

             782.07 Manslaughter; aggravated manslaughter of an
      elderly person or disabled adult; aggravated manslaughter of a
      child; aggravated manslaughter of an officer, a firefighter, an
      emergency medical technician, or a paramedic.—
             (1) The killing of a human being by the act, procurement, or
      culpable negligence of another, without lawful justification according
      to the provisions of chapter 776 and in cases in which such killing
      shall not be excusable homicide or murder, according to the
      provisions of this chapter, is manslaughter, a felony of the second
      degree, punishable as provided in s. 775.082, s. 775.083, or s.
      775.084.

§ 782.07(1), Fla. Stat. (2006). The statute remains in this same form today. In

discussing the requirements of the manslaughter statute, we stated in Montgomery:

      We observe that the statute does not impose a requirement that the
      defendant intend to kill the victim. Instead, it plainly provides that
      where one commits an act that results in death, and such an act is not
      lawfully justified or excusable, it is manslaughter.

Montgomery, 39 So. 3d at 256. This Court concluded that giving this erroneous

jury instruction constituted fundamental error because Montgomery was convicted

of second-degree murder, one step removed from manslaughter, and because he

was entitled to a correct instruction on manslaughter. We further explained in

Montgomery that “[a]lthough in some cases of manslaughter by act it may be

inferred from the facts that the defendant intended to kill the victim, to impose

                                         -5-
such a requirement on a finding of manslaughter by act would blur the distinction

between first-degree murder and manslaughter.” Id. at 256. “Moreover, it would

impose a more stringent finding of intent upon manslaughter than upon second-

degree murder, which, like manslaughter, does not require proof that the defendant

intended to kill the victim.” Id.

      We also recognized in Montgomery that the jury in that case was instructed,

similar to the instruction in the instant case, that “[i]n order to convict of

manslaughter by intentional act, it is not necessary for the State to prove that the

defendant had a premeditated intent to cause death.” Montgomery, 39 So. 3d at

256 (quoting Fla. Std. Jury Instr. (Crim.) 7.7 (2006)). Even so, we concluded that

this additional phrase did not alleviate the fundamental error. We explained:

      Although the instruction also provided that “it is not necessary for the
      State to prove that the defendant had a premeditated intent to cause
      death,” we conclude that this language was insufficient to erode the
      import of the second element: that the jury must find that the
      defendant intended to cause the death of the victim.

Id. at 257. After issuance of our opinion in Montgomery, we issued an interim

corrected manslaughter by act instruction 2 and in 2011 we issued the following

final amended instruction for manslaughter by act:

             To prove the crime of Manslaughter, the State must prove
      the following two elements beyond a reasonable doubt:

       2. See In re Amendments to Standard Jury Instructions in Criminal Cases—
Instruction 7.7, 41 So. 3d 853, 854-55 (Fla. 2010).


                                          -6-
            1. (Victim) is dead.
      Give 2a, 2b, or 2c depending upon allegations and proof.
            2. a. (Defendant) intentionally committed an act or acts that
      caused the death of (victim).
               b. (Defendant) intentionally procured an act that caused
      the death of (victim).
               c. The death of (victim) was caused by the culpable
      negligence of (defendant).
         ....
            Give only if 2a alleged and proved.
            In order to convict of manslaughter by act, it is not
      necessary for the State to prove that the defendant had an intent
      to cause death, only an intent to commit an act that was not
      merely negligent, justified, or excusable and which caused death.

In re Amendments to Standard Jury Instructions in Criminal Cases—Instruction

7.7, 75 So. 3d 210, 211-12 (Fla. 2011) (strikethroughs and underlining omitted). 3

                                   ANALYSIS

      We turn now to the question of whether the standard jury instruction for the

offense of attempted manslaughter by act gives rise to fundamental error, just as

we concluded the standard instruction for the completed crime of manslaughter did

in Montgomery. We hold, consistent with our holding in Montgomery, that a trial

court commits fundamental error in giving the standard jury instruction on


       3. As to proposed amendment of Standard Jury Instruction 6.6, Attempted
Voluntary Manslaughter, the issue was presented in In re: Standard Jury
Instructions in Criminal Cases—Report 2010-05, SC10-2434. On May 24, 2011,
Instruction 6.6 was severed from that case to be considered in In re: Standard Jury
Instructions in Criminal Cases—Instruction 6.6 and Instructions 25.9-25.12,
SC11-1010. Thereafter, on March 19, 2012, instruction 6.6 was severed from that
case and placed for consideration in In re: Standard Jury Instructions in Criminal
Cases—Instruction 6.6 and Instructions 25.9-25.13, SC12-462.


                                        -7-
attempted manslaughter by act where the defendant is convicted of a crime no

more than one step removed from the improperly instructed offense. As we made

clear in Montgomery, the manslaughter statute does not impose a requirement that

the defendant intend to kill the victim. Similarly, in order to convict a defendant

for an attempted manslaughter, there is no requirement that the defendant intend to

kill the victim but for some reason failed to do so. We have held that if the State is

not required to show specific intent to successfully prosecute a completed crime, it

will not be required to show specific intent to successfully prosecute an attempt to

commit that crime. See Gentry v. State, 437 So. 2d 1097, 1099 (Fla. 1983). The

crime of attempted manslaughter exists “in situations where, if death had resulted,

the defendant could have been found guilty of voluntary manslaughter

[manslaughter by act].” See Murray v. State, 491 So. 2d 1120, 1122 (Fla. 1986)

(quoting Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983)). Because we have now

clarified that the crime of manslaughter by act does not require an intent to kill, we

are constrained to similarly hold that the crime of attempted manslaughter by act

does not require an intent to kill.

      The Fourth District attempted to uphold the standard jury instruction on

attempted manslaughter by act by stating that “[t]he error that occurs by instructing

the jury that ‘an intent to kill’ is an element of manslaughter does not exist when

instructing the jury that the defendant committed an act which was intended to



                                         -8-
cause the death of the victim.” Williams, 40 So. 3d at 75. This is a distinction

without a difference. The attempted manslaughter by act instruction clearly

required an intent to cause the death of the victim, which we have held to be error

under the manslaughter statute. The district court also justified its decision in this

case by noting that this Court did not amend the attempted manslaughter jury

instruction when it amended the manslaughter instruction in 2011 after the

Montgomery decision was issued. See Williams, 40 So. 3d at 75. However, this

fact has no bearing on whether the instruction is erroneous. 4

      Lastly, the district court in Williams concluded:

      [A]s worded, the instruction did not confuse this jury. The jury found
      the defendant guilty of attempted second degree murder, which
      necessarily means the jury found the defendant “intentionally
      committed an act” that would have resulted in the death of the victim
      and that the act was imminently dangerous to another and
      demonstrated a depraved mind, without regard for human life.

Williams, 40 So. 3d at 75. However, because the jury found Williams guilty of

attempted second-degree murder, an offense not requiring proof of intent to cause

       4. We have made clear that in authorizing the publication and use of a
standard jury instruction, “we express no opinion on its correctness and remind all
interested parties that this authorization forecloses neither requesting additional or
alternative instructions nor contesting the legal correctness of the instruction.” In
re Standard Jury Instructions—Instruction 7.7, 75 So. 3d at 211. Moreover, the
Court’s apparent inaction at that time was not an indication of this Court’s tacit
approval of the existing instruction. See supra note 3. Even if this Court’s inaction
had been intended to indicate approval of the existing attempted manslaughter
instruction, such would not necessarily cure any fundamental error that might exist
in that instruction.


                                         -9-
the death of the victim, it must have determined that Williams did not intend to

cause the victim’s death. And, because the instruction given for attempted

manslaughter by act erroneously included an intent to kill element, the jury was

left with attempted second-degree murder as the only viable lesser included offense

under the instructions given. 5 Thus, a correct attempted manslaughter by act

instruction was critical to what the jury had to consider in this case to determine if

Williams was guilty of attempted first-degree murder, attempted second-degree

murder, or attempted manslaughter by act.

      This Court explained in Garzon v. State, 980 So. 2d 1038 (Fla. 2008):

             We have consistently held that not all error in jury instructions
      is fundamental error. . . . Further, “ ‘fundamental error occurs only
      when the omission is pertinent or material to what the jury must
      consider in order to convict.’ Failing to instruct on an element of the
      crime over which the record reflects there was no dispute is not
      fundamental error. . . .”

Id. at 1042 (quoting State v. Delva, 575 So. 2d 643, 645 (Fla. 1991) (citation

omitted) (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982)).

      In Reed v. State, 837 So. 2d 366 (Fla. 2002), we made clear that if an

erroneous instruction is given as to a disputed element of the offense, and the

instruction is pertinent or material to what the jury must consider in order to

      5. There is no crime of attempted manslaughter by culpable negligence. See
Tillman v. State, 471 So. 2d 32, 33 (Fla. 1985) (citing Taylor, 444 So. 2d at 934).
Thus, the jury was not instructed on attempted manslaughter by culpable
negligence.


                                        - 10 -
convict, it is fundamental error; and “fundamental error is not subject to harmless

error review.” Id. at 369-70. In finding the instruction to be fundamental error in

Montgomery, we focused on the fact that the manslaughter by act instruction was

“pertinent or material to what the jury must consider in order to convict,” and

emphasized the defendant’s right to have the jury correctly instructed.

Montgomery, 39 So. 3d at 258 (quoting Delva, 575 So. 2d at 645). We concluded

in Montgomery “that fundamental error occurred in this case, where Montgomery

was indicted and tried for first-degree murder and ultimately convicted of second-

degree murder after the jury was erroneously instructed on the lesser included

offense of manslaughter.” Montgomery, 39 So. 3d at 258. Thus, where the

erroneous instruction applies to an element of the crime that is in dispute and “is

pertinent or material to what the jury must consider” to convict, an erroneous jury

instruction will be found to be fundamental error where the defendant is convicted

of a crime no more than one step removed from the improperly instructed offense. 6

This is true regardless of whether there is ample evidence to convict the defendant



        6. We held in Pena v. State, 901 So. 2d 781, 787 (Fla. 2005), that when the
trial court fails to properly instruct on a crime two or more degrees removed from
the crime for which the defendant is convicted, the error is subject to a harmless
error analysis. However, as we held in Montgomery, when the court fails to
properly instruct on an offense only one step removed from the crime for which the
defendant is convicted and the instruction is pertinent or material to what the jury
must consider to convict and concerns a matter in dispute, Reed, 837 So. 2d at 369,
the error is fundamental. Montgomery, 39 So. 3d at 259.


                                        - 11 -
of the higher crime. “[W]hether the evidence of guilt is overwhelming or whether

the prosecutor has or has not made an inaccurate instruction a feature of the

prosecution’s argument are not germane to whether the error is fundamental.”

Reed, 837 So. 2d at 369. Simply stated, the defendant is entitled to an accurate

instruction on the charged offenses and all lesser included offenses, and when the

defendant is convicted of a crime not more than one step removed from the crime

for which an erroneous instruction is given, fundamental error occurs if the

instruction pertains to a disputed element of the crime.

      We also note that, with the exception of the Fourth District, all the district

courts have held that giving the standard jury instruction for attempted

manslaughter by act constitutes fundamental error. See, e.g., Thompson v. State,

76 So. 3d 1050, 1052 (Fla. 1st DCA 2011) (holding that the standard instruction

erroneously “adds the additional element that the defendant ‘committed an act

intended to cause the death’ of the victim when attempted manslaughter by act

requires only an intentional unlawful act” (quoting Lamb, 18 So. 3d at 735));

Houston v. State, 87 So. 3d 1, 2 (Fla. 2d DCA 2011) (holding that “the phrase

‘committed an act which was intended to cause the death of’ impermissibly creates

an intent-to-kill element in the crime of attempted manslaughter” that is not

required by the manslaughter statute); Burrows v. State, 62 So. 3d 1258, 1260 (Fla.

3d DCA 2011) (reversing Burrows’ conviction for second-degree murder based on



                                        - 12 -
a holding that the attempted manslaughter instruction was fundamental error); and

Burton v. State, 36 Fla. L. Weekly D738, *1 (Fla. 5th DCA Apr. 8, 2011)

(concluding that the jury instruction given for attempted manslaughter required

proof of intent to kill and was, thus, fundamental error). What is more, in some

district court cases the State conceded that the jury instruction for attempted

manslaughter was erroneous and created fundamental error, 7 contrary to the

position now taken by the State in this Court. 8

      Based on the foregoing analysis, we hold that the attempted manslaughter by

act jury instruction given in this case constituted fundamental error. In so holding,

we must quash the Fourth District’s decision below and approve the decision of the

First District in the certified conflict case of Lamb. The First District in Lamb

correctly held that the trial court committed fundamental error by giving the

      7. See, e.g., Gonzalez v. State, 40 So. 3d 60, 62 (Fla. 2d DCA 2010);
Coiscou v. State, 43 So. 3d 123, 124 (Fla. 3d DCA 2010).

      8. We also decline the State’s invitation in this case to revisit our
Montgomery decision. We have reconfirmed the holding in Montgomery in
subsequent cases, such as Bonilla v. State, 75 So. 3d 233 (Fla. 2011), where we
explained:
      In State v. Montgomery, 39 So. 3d 252 (Fla. 2010), we held that
      because defendant Montgomery, who was convicted of second-degree
      murder, was entitled to an accurate jury instruction on the necessarily
      lesser included offense of manslaughter by act, the use of the then-
      standard jury instruction on manslaughter by act constituted
      fundamental reversible error in his case because it erroneously
      required the jury to find that the defendant intentionally caused the
      death of the victim.
Bonilla, 75 So. 3d at 233.

                                        - 13 -
standard jury instruction for attempted manslaughter by act because it added the

additional element that the defendant “committed an act intended to cause the

death” of the victim, when attempted manslaughter by act requires only an

intentional unlawful act. See Lamb, 18 So. 3d at 735.

      The Fourth District also certified a question to this Court asking if attempted

manslaughter remains a viable offense in light of Montgomery. We answer this

question in the affirmative and hold that attempted manslaughter by act remains a

viable offense. We held in Taylor v. State, 444 So. 2d 931 (Fla. 1983), that

attempted manslaughter by act is a cognizable crime in this state. There, tellingly,

we noted: “We reiterate, however, that a verdict for attempted manslaughter can

be rendered only if there is proof that the defendant had the requisite intent to

commit an unlawful act.” Id. at 934. We further held in Taylor that there can be

no crime of attempted manslaughter by culpable negligence. Nothing in our

decision in Montgomery causes us to conclude that attempted manslaughter is no

longer a viable offense.

                                  CONCLUSION

      Based on the foregoing analysis, we quash the decision of the Fourth District

in Williams and remand for proceedings consistent with this decision. We further

approve the decision of the First District in Lamb.

      It is so ordered.



                                        - 14 -
PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.


CANADY, J., dissenting.

      Although I agree with the majority’s answer regarding the second certified

question, I disagree with its conclusion concerning the first certified question. For

the reasons I have expressed in my dissent in Haygood v. State, No. SC11-294

(Fla. Feb. 14, 2013), I conclude that the jury pardon doctrine should be repudiated.

Since the majority’s conclusion that Williams is entitled to a new trial rests on the

jury pardon doctrine, I dissent.

      Here, as in Haygood, there is no evidentiary basis for giving an instruction

on the one-step-removed lesser included offense. The uncontroverted facts

regarding Williams’ sustained and savage attack on the victim belie any suggestion

that he lacked the depraved mind requisite for attempted second-degree murder and

that a rational jury could have acquitted him of that offense and found him guilty

of attempted manslaughter by act. I would therefore reject Williams’ claims of

fundamental error. The decision of the Fourth District Court of Appeal affirming

Williams’ convictions and sentences should not be disturbed.

POLSTON, C.J., concurs.



                                        - 15 -
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

      Fourth District - Case No. 4D09-2159

      (St. Lucie County)

Carey Haughwout, Public Defender, Fifteenth Judicial Circuit, Florida and Dea
Abramschmitt and John Michael Conway and Margaret Price Natale, Assistant
Public Defenders, Fifteenth Judicial Circuit,West Palm Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Consiglia Terenzio,
Bureau Chief and Diane Fischer Medley and Melanie Dale Surber, Assistant
Attorney Generals, West Palm Beach, Florida,

      for Respondent




                                       - 16 -
