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

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT

LEO RICHARD BERUBE,                )
                                   )
           Appellant,              )
                                   )
v.                                 )                       Case No. 2D09-4385
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed January 15, 2016.

Appeal from the Circuit Court for Pinellas
County; Thane Covert, Judge.

James Marion Moorman, Public Defender,
and Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Appellee.


            ON SECOND REMAND FROM THE SUPREME COURT OF FLORIDA


ALTENBERND, Judge.

              On a second remand from the Florida Supreme Court, we reconsider Leo

Richard Berube's conviction for second-degree murder in light of the subsequent

decision in Griffin v. State, 160 So. 3d 63 (Fla. 2015).
              This case now has a significant history. Mr. Berube was initially convicted

of first-degree murder. This court reversed that conviction in a lengthy decision that

detailed the facts of the case. The conviction was overturned because the trial court

erroneously admitted some Williams1 rule evidence concerning prior alleged rapes by

Mr. Berube. See Berube v. State, 5 So. 3d 734, 739-42 (Fla. 2d DCA 2009) (Berube I).

              At a second trial, Mr. Berube was acquitted of first-degree murder but

convicted of second-degree murder. On appeal, he argued that the then-standard jury

instruction for manslaughter by act, as amended in 2008, was fundamental error under

the reasoning of the supreme court's decision in State v. Montgomery, 39 So. 3d 252,

259 (Fla. 2010). This court concluded that the instruction did not constitute fundamental

error. Berube v. State, 84 So. 3d 436, 436 (Fla. 2d DCA 2012) (Berube II).

              On review, the supreme court quashed our decision in Berube II and

remanded the case for reconsideration in light of its decision in Daniels v. State, 121 So.

3d 409, 419 (Fla. 2013), which held that the instruction as amended in 2008 suffered

from "the same infirmity" that the court found erroneous in Montgomery. See Berube v.

State, 137 So. 3d 1019 (Fla. 2014) (Berube III).

              This court then wrote a decision discussing its confusion over the

application of the "one-step-removed" rule announced for preserved error in State v.

Abreau, 363 So. 2d 1063, 1064 (Fla. 1978), in the context of unpreserved error. See

Berube v. State, 149 So. 3d 1165 (Fla. 2d DCA 2014) (Berube IV).2 In Berube IV, we


              1
                  Williams v. State, 110 So. 2d 654 (Fla. 1959).
              2
               In Berube IV, this court inaccurately summarized Mr. Berube's argument
in Berube II as arguing that the instruction concerning intent given on the next lesser
offense of manslaughter was fundamentally erroneous for the reasons discussed in the



                                             -2-
held that when an error is not preserved, the defendant has the burden of persuasion to

establish that the error was harmful or prejudicial in order for the error to be treated as

fundamental error. Id. at 1168. Upon full review of the record, we concluded "beyond a

reasonable doubt that the giving of this instruction was not harmful." Id. at 1169.

                Berube IV issued before the oral argument in Griffin. Our opinion reflected

that the two cases were similar. Id. at 1167. Thus, we are confident that the supreme

court was aware of our concern that the "one-step-removed" analysis seemed to

transform this particular analysis for fundamental error into an analysis that is similar to

per se error.

                In Griffin, "the 'manner' of the crime was simply death by gunshot." Griffin,

160 So. 3d at 68. In this case, as reflected in our prior opinions, the victim was brutally

strangled with a lamp cord while she was naked on a bed in a motel room. Berube IV,

149 So. 3d at 1173. There was no dispute as to the mechanism of death or that it

required two minutes or longer for the victim to expire. We have carefully considered

whether this significant difference between Griffin and this case would allow this court,

once again, to declare that the error in the next lesser instruction was harmless.

                But the opinion in Griffin emphasizes that a "defendant is entitled to an

accurate instruction on the charged offenses and all lesser included offenses." Griffin,

160 So. 3d at 69 (emphasis added). The supreme court repeats the holding in Reed v.

State, 837 So. 2d 366, 369 (Fla. 2002), that "whether evidence of guilt is



First District's opinion in Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009). In
fact, Mr. Berube argued that the instruction was fundamental error under the reasoning
of the First District's opinion in Pryor v. State, 48 So. 3d 159 (Fla. 1st DCA 2010), which
applied the supreme court's decision in Montgomery to the instruction as amended in
2008.



                                             -3-
overwhelming . . . [is] not germane to whether the error is fundamental." Griffin, 160 So.

3d at 69 (quoting Williams v. State, 123 So. 3d 23, 29 (Fla. 2013) (quoting Reed, 837

So. 2d at 369)). Thus, the supreme court has unequivocally extended the holding in

Reed that overwhelming evidence could not render harmless an error in the instruction

for the offense for which the defendant was convicted. Griffin makes it clear that the

supreme court intends this same principle to apply when the error occurs in the

instruction for the next lesser offense—at least when the charged offense and the lesser

are merely two versions of a core offense, i.e. "unlawful homicide." Griffin, 160 So. 3d

at 68. Accordingly, the fact that the evidence in this case was overwhelming that

whoever killed this woman did so by an act that was imminently dangerous to another

and demonstrated a depraved mind without regard for human life is not a factor we are

allowed to consider in determining whether this error is fundamental.

              Because "the burden is on the State to prove all elements involved in the

degree of the homicide for which the defendant is convicted," id., unless the defendant

expressly concedes the issue of intent, the supreme court concludes that the issue is in

dispute and that an error regarding intent in the instruction for the next lesser offense is

fundamental error that requires reversal. The court summarized its holding at the end of

Griffin:

              Because Griffin was convicted of second-degree murder, an
              offense only one step removed from manslaughter, and
              because he did not concede the intent by which the
              homicide was committed, proof of that issue remained on the
              State, and remained in dispute notwithstanding Griffin's
              defense of misidentification. Thus, fundamental error
              occurred which requires a new trial.

Id. at 70.




                                            -4-
              There is no question that the State met its burden of proof in this case.

But the preceding sentences can be repeated in this case with merely a change of the

word, "Griffin" to "Berube." Mr. Berube did not concede that the murderer acted with the

intent necessary for second-degree murder. Of course, his lawyer did not argue that

the murderer acted without that intent because the jury would have found that argument

incredible.

              We conclude that the holding in Griffin requires this court to treat the jury

instruction error as essentially per se error in the absence of an express concession by

the defendant. Accordingly, unless we have misinterpreted the holding in Griffin, we are

compelled to award Mr. Berube a new trial.

              Reversed and remanded for a new trial.



SILBERMAN and WALLACE, JJ., Concur.




                                            -5-
