       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             LEROY SINGH,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D08-2171

                           [January 20, 2016]


   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Eileen M. O'Connor, Judge; L.T. Case No. 06-14626
CF10A.

  Carey Haughwout, Public Defender, and John M. Conway, Assistant
Public Defender, West Palm Beach, for appellant.

   Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley,
Assistant Attorney General, West Palm Beach, for appellee.

                           ON REMAND FROM
                      THE FLORIDA SUPREME COURT

PER CURIAM.

    After we affirmed the appellant’s conviction on direct appeal, the
Florida Supreme Court quashed our opinion and remanded for
reconsideration in light of its opinion in Haygood v. State, 109 So. 3d 735
(Fla. 2013). Singh v. State, 160 So. 3d 898 (Fla. 2014). Based on
Dominique v. State, 171 So. 3d 204 (Fla. 4th DCA 2015), rev. granted,
Case No. SC15-1613, 2015 WL 7890599 (Fla. Nov. 25, 2015), which
analyzed Haygood and other pertinent case law, we reverse and remand
for a new trial.

   The appellant was convicted of second-degree murder with a firearm,
a lesser of the charged offense of first-degree murder with a firearm. On
appeal, he argued that the standard jury instruction for the lesser
included offense of manslaughter by act constituted fundamental error
because the instruction suggests that intent to kill is an element of
manslaughter by act and precluded the jury from returning a verdict for
manslaughter if it believed the defendant did not intend to kill the victim.
We affirmed, reasoning that the fundamental error was cured by the
portion of the instruction giving the jury the option of finding the
defendant guilty of manslaughter by culpable negligence. Singh v. State,
36 So. 3d 848, 851 (Fla. 4th DCA 2010) (“Singh I”).

   After our opinion issued, the Florida Supreme Court released its
opinion in Haygood, 109 So. 3d 735, in which it held:

[G]iving the manslaughter by culpable negligence instruction does not
cure the fundamental error in giving the erroneous manslaughter by act
instruction where the defendant is convicted of an offense not more than
one step removed from manslaughter and the evidence supports a
finding of manslaughter by act, but does not reasonably support a
finding that the death occurred due to the culpable negligence of the
defendant.

Id. at 743. Based on Haygood, the supreme court quashed our decision
in Singh I and remanded for reconsideration. See Singh, 160 So. 3d 898.

    On remand, the state argues that Haygood does not require reversal
because the state presented evidence at trial that would have supported
a finding of culpable negligence. This argument has been foreclosed by
Dominique, 171 So. 3d 204, where this court concluded, after considering
the “evolving precedent” on the issue, that “giving the manslaughter by
culpable negligence instruction cannot under any circumstances cure the
fundamental error caused by giving the erroneous manslaughter by act
instruction, even where the evidence reasonably could support a finding
of manslaughter by culpable negligence.” Id. at 207 (emphasis added).
Accordingly, we reverse and remand for a new trial on the charge of
second-degree murder.

   Reversed and remanded for proceedings consistent with this opinion.

CIKLIN, C.J., STEVENSON and GERBER, JJ, concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.
