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

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



JOSEPH COLEMAN, DOC #759861,                 )
                                             )
             Appellant,                      )
                                             )
v.                                           )       Case No. 2D13-2700
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed January 30, 2015.

Appeal from the Circuit Court for Pasco
County; Pat Siracusa, Judge.

Howard L. Dimmig, II, Public Defender, and
Kevin E. Leisure, Special Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn A. Tiffin, Assistant
Attorney General, Tampa, for Appellee.


WALLACE, Judge.


             The State charged Mr. Coleman with the attempted first-degree murder

and kidnapping of his wife, Sylvia Coleman. Following a jury trial, Mr. Coleman was

convicted of attempted second-degree murder, a lesser-included offense, and

kidnapping. We affirmed his convictions and sentences on direct appeal. Coleman v.

State, 63 So. 3d 760 (Fla. 2d DCA 2011) (table decision).
              Thereafter, on April 25, 2013, we granted Mr. Coleman's petition for

ineffective assistance of appellate counsel to the extent that we found appellate counsel

was ineffective for failing to argue on direct appeal that the trial court's giving of the

then-standard jury instruction on the lesser-included offense of attempted manslaughter

by act constituted fundamental error requiring a new trial. Coleman v. State, 110 So. 3d

971 (Fla. 2d DCA 2013) (per curiam). We granted Mr. Coleman a belated direct appeal

on this issue only, which is the subject of this proceeding. We now reverse Mr.

Coleman's conviction and sentence for attempted second-degree murder and remand

for a new trial on that offense.

              It is well-settled "that giving the standard jury instruction on attempted

manslaughter by act—which . . . requires the jury to find the defendant committed an act

intended to cause death— . . . constitutes fundamental error where the defendant is

convicted of an offense not more than one step removed from attempted manslaughter."

Williams v. State, 123 So. 3d 23, 24 (Fla. 2013). Further, to constitute fundamental

error, the erroneous instruction must apply "to an element of the crime that is in dispute

and 'is pertinent or material to what the jury must consider' to convict." Id. at 29 (quoting

Montgomery v. State, 39 So. 3d 252, 258 (Fla. 2010)); see also Saldana v. State, 139

So. 3d 351, 352-53 (Fla. 2d DCA 2014) (noting same).

              Although Mr. Coleman did not introduce any evidence at trial, Mr.

Coleman's trial attorney argued during closing argument that if the jury believed that Mr.

Coleman shot the victim, the State had not established that he possessed the intent to

kill the victim when he shot her. Counsel further argued how the evidence tended to

show that Mr. Coleman lacked such an intent, and he directed the jury's attention to the




                                             -2-
victim's description of the incident, which arguably could be interpreted to suggest that

the gun discharged by accident. Thus Mr. Coleman's intent was indisputably at issue at

trial and was pertinent to what the jury had to consider to convict Mr. Coleman on the

primary offense or one of the lesser-included offenses.1 See Williams, 123 So. 3d at

29.

               Because Mr. Coleman was convicted of an offense no more than one step

removed from the offense of attempted manslaughter by act and because Mr.

Coleman's intent was in dispute and was pertinent to what the jury had to consider in

reaching its verdict, we conclude that the trial court's giving of the faulty instruction in

this case constituted fundamental error. See Williams, 123 So. 3d at 24, 29; see also

Lopez v. State, 136 So. 3d 1265, 1266 (Fla. 2d DCA 2014). Accordingly, we reverse

Mr. Coleman's conviction for attempted second-degree murder and remand for a new

trial on that offense.

               Reversed and remanded for a new trial.



NORTHCUTT and MORRIS, JJ., Concur.




               1
                Mr. Coleman argued in his brief that his intent to cause the death of the
victim was at issue because he pleaded not guilty to "all of the charges" and thus the
State "was required to prove each and every element." In addition, citing to this court's
decision in Hill v. State, 124 So. 3d 296 (Fla. 2d DCA 2013), Mr. Coleman argued that
the prosecutor placed Mr. Coleman's intent at issue by arguing that one of the elements
that the State needed to prove to establish his guilt for "attempted voluntary
manslaughter was that Mr. Coleman 'intended to cause the death of Sylvia.' " Because
Mr. Coleman's trial counsel argued directly to the jury that the State failed to establish
that Mr. Coleman intended to kill the victim, we need not address these arguments
further.


                                             -3-
