          Supreme Court of Florida
                                   ____________

                                  No. SC15-1613
                                  ____________

                              STATE OF FLORIDA,
                                  Petitioner,

                                         vs.

                            NICOLAS DOMINIQUE,
                                 Respondent.

                                 [March 30, 2017]

LABARGA, C.J.

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

Court of Appeal in Dominique v. State (Dominique II), 171 So. 3d 204 (Fla. 4th

DCA 2015). The district court certified that its decision is in express and direct

conflict with the decision of the Third District Court of Appeal in Dawkins v.

State, 170 So. 3d 81 (Fla. 3d DCA 2015). We have jurisdiction. See art. V,

§ 3(b)(4), Fla. Const. For the reasons we explain, we quash the decision in

Dominique II and approve the decision in Dawkins.
                 FACTS AND PROCEDURAL BACKGROUND

      Nicolas Dominique was charged with first-degree murder and ultimately

convicted of the second-degree murder of Dwayne Clementson. Dominique II,

171 So. 3d at 204. The district court provided a brief summary of the facts as

follows:

            At the trial, the state presented evidence that the defendant was
      outside of his former girlfriend’s house when her new boyfriend
      arrived by car. When the new boyfriend exited his car, the defendant
      chased the new boyfriend down the street while firing a gun, shooting
      the new boyfriend in the leg which caused him to fall, and then
      shooting the new boyfriend in the back of the head, killing him.
            The state argued that the defendant’s actions constituted first-
      degree murder. The defendant argued that his actions in chasing the
      new boyfriend down the street while firing his gun was [sic], at worst,
      manslaughter by culpable negligence.
            The trial court instructed the jury on first-degree murder,
      second-degree murder, manslaughter by act, and manslaughter by
      culpable negligence. The jury found the defendant guilty of second-
      degree murder.

Id. at 204-05.

      Dominique’s jury was instructed on the lesser included offense of

manslaughter by act with the same instruction that this Court found to be

fundamentally erroneous in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), which

instructed the jury that to convict for manslaughter by act, the jury must find that

the defendant intentionally caused the death of the victim—a finding of an intent to

kill that was not an element of the offense of manslaughter by act. On direct

appeal, Dominique argued that he was entitled to relief in light of Montgomery, but

                                         -2-
the Fourth District disagreed and affirmed. See Dominique II, 171 So. 3d at 205.

The Fourth District rejected the fundamental error claim based on the fact that the

trial court also instructed the jury on the lesser included offense of manslaughter by

culpable negligence. See Dominique v. State (Dominique I), 40 So. 3d 33, 36 (Fla.

4th DCA 2010).

      The case then came to this Court on petition for review of the decision in

Dominique I. However, we stayed that case pending the disposition of the review

of the decision of the Second District Court of Appeal in Haygood v. State, 54 So.

3d 1035 (Fla. 2d DCA 2011), which was then before this Court. Our decision in

Haygood v. State, 109 So. 3d 735 (Fla. 2013), was subsequently issued and held

that the fundamental error caused by the erroneous Montgomery manslaughter by

act instruction was not cured by giving the instruction on manslaughter by culpable

negligence where there was no evidence from which a jury could reasonably

convict of manslaughter by culpable negligence. See id. at 743. After our decision

in Haygood was issued, and upon review of the response to this Court’s Order to

Show Cause, we granted the petition for review, summarily quashed the decision

of the Fourth District in Dominique I, and remanded to the district court for

reconsideration in light of our decision in Haygood. See Dominique v. State, 160

So. 3d 894 (Fla. 2014) (table report of unpublished order).




                                        -3-
      On remand, the Fourth District reversed the conviction and held that

fundamental error occurred in the giving of the jury instruction for manslaughter

by act, requiring a new trial. Dominique II, 171 So. 3d at 204. The Fourth District

interpreted our decision in Haygood to require a new trial any time the erroneous

manslaughter by act instruction is given and the defendant is convicted of an

offense not more than one step removed from manslaughter—regardless of

whether the evidence could support a finding of manslaughter by culpable

negligence. The district court certified express and direct conflict with Dawkins v.

State, 170 So. 3d 81, 81 (Fla. 3d DCA 2015), and the State sought review of

Dominique II in this Court based on that certified conflict.

      In this case, the State contends that the Fourth District in Dominique II

misreads Haygood and other cases following Montgomery to incorrectly hold that

the erroneous manslaughter by act instruction is fundamental error in all cases,

regardless of whether the manslaughter by culpable negligence instruction is given

and regardless of whether there is evidence that reasonably supports manslaughter

by culpable negligence. Thus, this iteration of a Montgomery challenge focuses on

the district court’s interpretation of this Court’s decision in Haygood.




                                         -4-
      The Fourth District concluded that this Court’s evolution from Montgomery

to Haygood to Griffin1 demonstrates that giving the manslaughter by act

instruction is per se reversible error, even where there is evidence that could

support a finding of manslaughter by culpable negligence. The court stated that

the culpable negligence instruction “cannot under any circumstance cure” the error

created by the faulty manslaughter by act instruction because the error is always

pertinent or material to what the jury had to consider to convict the defendant of

manslaughter. Dominique II, 171 So. 3d at 207. The district court also noted, “We

recognize the state’s factual distinction from Haygood that giving the erroneous

manslaughter by act instruction is fundamental error where the evidence does not

support the accompanying manslaughter by culpable negligence instruction,

whereas here the evidence arguably supported the accompanying manslaughter by

culpable negligence instruction.” Id. at 205. Nevertheless, the district court went

on to find the error fundamental and per se reversible. The Fourth District

explained:

             In contrast to the Third District [in Dawkins], under our reading
      of the evolving precedent from Montgomery to Haygood to Griffin,
      giving the manslaughter by culpable negligence instruction cannot
      under any circumstance cure the fundamental error caused by giving

       1. Griffin v. State, 160 So. 3d 63, 70 (Fla. 2015) (holding that the giving of
the erroneous manslaughter by act instruction constituted fundamental error where
the defendant offered a misidentification defense at trial, which did not concede the
element of intent). The Haygood issue was not present in Griffin.


                                         -5-
      the erroneous manslaughter by act instruction, even where the
      evidence reasonably could support a finding of manslaughter by
      culpable negligence.

Id. at 207 (bracketed material added). Dawkins held that “where the jury was also

instructed in manslaughter by culpable negligence and the evidence could

reasonably support so finding, the error in giving the flawed Montgomery

manslaughter by act instructions was not per se fundamental error.” 170 So. 3d at

83. Thus, the Fourth District certified conflict with Dawkins. Before resolving the

certified conflict, we review our decision in Haygood, which is central to this case.

                                 Haygood v. State

      In 2013, this Court issued its decision in Haygood, which is yet another case

arising out of a Montgomery fundamental error claim. In Haygood, we stated:

      We hold that giving the erroneous manslaughter by act instruction,
      which we found to be fundamental error in State v. Montgomery, 39
      So. 3d 252 (Fla. 2010), is also fundamental error even if the
      instruction on manslaughter by culpable negligence is given where the
      evidence supports manslaughter by act but does not support culpable
      negligence and the defendant is convicted of second-degree murder.

Haygood, 109 So. 3d at 737 (footnote omitted) (emphasis added). In Montgomery,

we held that the standard jury instruction on manslaughter by act was erroneous

because it imposed an element of an intent to kill not contained in section 782.07,

Florida Statutes (2005), the manslaughter statute. The error was found to be

fundamental in Montgomery, where the defendant was charged with first-degree

murder but was convicted of second-degree murder, only one step removed from

                                        -6-
manslaughter. Montgomery, 39 So. 3d at 260. We reiterated in Montgomery that

the erroneous jury instruction was fundamental error because it was “pertinent or

material to what the jury must consider in order to convict” and it pertained to an

element of the crime that was in dispute. Montgomery, 39 So. 3d at 258 (quoting

State v. Delva, 575 So. 2d 643, 645 (Fla. 1991)). Whether the error could be cured

because of the giving of a culpable negligence instruction was not at issue in

Montgomery.

      In Haygood, we were asked to apply the Montgomery decision to a case in

which the erroneous manslaughter by act instruction was given, but where the jury

was also instructed on the lesser included offense of manslaughter by culpable

negligence. The circumstances of the homicide were the driving factors in

determining whether fundamental error occurred by the erroneous instruction or

whether also giving the instruction on manslaughter by culpable negligence

“cured” the error. We explained in Haygood that the defendant was angry with his

girlfriend and beat her, causing her to fall, hit her head, and become unconscious.

Haygood, 109 So. 3d at 737. At that point, Haygood had his mother call for an

ambulance and he attempted to perform CPR. Haygood told police that he had

consumed nine beers and was not completely sober, and had hit her in a rage over

her infidelity. Id. He said he did not mean to seriously injure her, and called her

death an accident because “I didn’t mean to kill her.” Id.


                                        -7-
      A main consideration by this Court in concluding that the manslaughter by

culpable negligence instruction did not cure the erroneous manslaughter by act

instruction in Haygood was explained as follows:

      The evidence in this case supported a finding that Haygood
      intentionally committed an act or acts, and that the act or acts resulted
      in the victim’s death. The evidence also supported a finding that he
      had no intent to kill the victim. Significantly, there was no evidence
      to support a finding that Tuckey’s death resulted from culpable
      negligence. Haygood’s unambiguous admission that he intended to
      strike, head butt, choke, and trip Tuckey essentially eliminated the
      alternate means of committing manslaughter—manslaughter by
      culpable negligence—as a viable lesser offense. Thus, second-degree
      murder was the only offense realistically available to the jury under
      the evidence presented in this case and the instructions given—
      instructions that required the jury to find intent to kill in order to
      convict Haygood for manslaughter by act.

Haygood, 109 So. 3d at 741-42 (emphasis added). Thus, where second-degree

murder is the only viable lesser included offense when the jury finds there is no

intent to kill, the error in the manslaughter by act instruction in requiring an intent

to cause death is fundamental if the defendant is convicted of second-degree

murder, one step removed from manslaughter. In applying both Montgomery and

Haygood to a given case in which the defendant is convicted of an offense not

more than one step removed from manslaughter, and in which both the erroneous

manslaughter by act instruction and the correct manslaughter by culpable

negligence instruction are given, the court will examine whether there is any

evidence that could “reasonably support a finding that the death occurred due to


                                          -8-
the culpable negligence of the defendant” in determining whether the fundamental

error is cured. Haygood, 109 So. 2d at 743. With our decision in Haygood in

mind, we turn to an analysis of the issue in this case.

                                     ANALYSIS

                                Standard of Review

      The certified conflict identified by the district court below presents solely a

legal question; thus, review is de novo. See Daniels v. State, 121 So. 3d 409, 413

(Fla. 2013); Haygood, 109 So. 3d at 739 (citing Kirton v. Fields, 997 So. 2d 349,

352 (Fla. 2008)). Where, as here, the error is unpreserved, we have repeatedly held

that jury instructions are subject to the contemporaneous objection rule and,

without an objection, error in an instruction can only be raised as fundamental

error on appeal. Daniels, 121 So. 3d at 417. Although the defendant has a right to

have the jury correctly instructed on the “essential and material elements of the

crime charged,” id. (quoting Delva, 575 So. 2d at 644), not all errors in jury

instructions are fundamental. See Garzon v. State, 980 So. 2d 1038, 1042 (Fla.

2008). We explained in Delva:

      To justify not imposing the contemporaneous objection rule, “the
      error must reach down into the validity of the trial itself to the extent
      that a verdict of guilty could not have been obtained without the
      assistance of the alleged error.” Brown[ v. State, 124 So. 2d 481, 484
      (Fla. 1960)]. In other words, “fundamental error occurs only when the
      omission is pertinent or material to what the jury must consider in
      order to convict.”



                                         -9-
Delva, 575 So. 2d at 644-45 (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla.

1982)). With these standards in mind, and in light of our decision in Haygood, a

more detailed review of the evidence and instruction given at trial in this case is

necessary.

                                     Discussion

      Dominique was charged with and tried for first-degree murder, but was

convicted of second-degree murder. The manslaughter instructions given at his

trial were as follows:

             To prove the crime of manslaughter, the State must prove the
      following two elements beyond a reasonable doubt:
             1. Dwayne Clementson is dead.
             2. (a) Nicolas Dominique intentionally caused the death of
             Dwayne Clementson.
             or
             (b) The death of Dwayne Clementson was caused by the
             culpable negligence of Nicolas Dominique.
             However, the defendant cannot be guilty of manslaughter if the
      killing was either justifiable or excusable homicide as I have
      previously explained those terms.
             In 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.
             I will now define “culpable negligence” for you. Each of us has
      a duty to act reasonably toward others. If there is a violation of that
      duty, without any conscious intention to harm, that violation is
      negligence. But culpable negligence is more than a failure to use
      ordinary care toward others. In order for negligence to be culpable, it
      must be gross and flagrant. Culpable negligence is a course of
      conduct showing reckless disregard of human life, or of the safety of
      persons exposed to its dangerous effects, or such an entire want of
      care as to raise a presumption of a conscious indifference to
      consequences, or which shows wantonness or recklessness, or a

                                        - 10 -
      grossly careless disregard for the safety and welfare of the public, or
      such an indifference to the rights of others as is equivalent to an
      intentional violation of such rights.
             The negligent act or omission must have been committed with
      an utter disregard for the safety of others. Culpable negligence is
      consciously doing an act or following a course of conduct that the
      defendant must have known, or reasonably should have known, was
      likely to cause death or great bodily injury.
             In 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.

No objection was made to the manslaughter instruction as given, even though the

manslaughter by act instruction erroneously required the jury to find an intent to

kill. See Montgomery, 39 So. 3d at 255.

      The Fourth District Court of Appeal, on remand from this Court, correctly

quoted our Haygood decision by stating:

      [G]iving the erroneous manslaughter by act instruction, which we
      found to be fundamental error in State v. Montgomery, 39 So. 3d 252
      (Fla. 2010), is also fundamental error even if the instruction on
      manslaughter by culpable negligence is given where the evidence
      supports manslaughter by act but does not support culpable
      negligence and the defendant is convicted of second-degree murder.

Dominique II, 171 So. 3d at 205 (quoting Haygood, 109 So. 3d at 737). This

portion of the Haygood decision shows that this Court was leaving open the

possibility that the error can be cured even when the defendant is convicted of

second-degree murder, one step removed from manslaughter, under certain

circumstances. Those circumstances include when the instruction for




                                       - 11 -
manslaughter by culpable negligence is also given and the evidence reasonably

supports a finding of manslaughter by culpable negligence.

      The Fourth District in Dominique II also quoted the portion of Haygood that

reiterated the principle that fundamental error 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.” 171 So. 3d at 205 (quoting Haygood, 109 So. 3d at

741). The district court concluded that the factual distinction between cases where

the evidence does not support culpable negligence and cases where, as here, the

evidence “arguably supported the accompanying manslaughter by culpable

negligence instruction” was “not central to the Supreme Court’s reasoning in

Haygood.” Id. at 205-06. Thus, the district court in Dominique II held that “under

our reading of the evolving precedent from Montgomery to Haygood to Griffin,

giving the manslaughter by culpable negligence instruction cannot under any

circumstance 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.

      In reaching this holding, the district court misapplied our decisions in

Haygood and Griffin to the issue of fundamental error under the facts of cases such

as this one. The distinction between cases in which there is evidence that could

reasonably support manslaughter by culpable negligence and those, like Haygood,


                                        - 12 -
where it cannot was indeed central to our decision in Haygood. Although the

Fourth District is correct that this Court has held intent is always pertinent or

material to what the jury must consider to convict in a homicide prosecution, that

statement cannot be considered in isolation when determining if fundamental error

in the giving of the erroneous jury instruction for manslaughter by act can ever be

cured. Intent is always pertinent in a homicide prosecution and where, as here, the

jury concludes there was no intent to kill, the question then arises what

nonintentional homicide lesser offenses are available for the jury’s consideration

and supported by the evidence. In Haygood, we found fundamental error occurred

because manslaughter by act was misinstructed to require an intent to kill and was

thus unavailable as a nonintentional lesser included offense. The instruction on

manslaughter by culpable negligence was given but was not supported by the

evidence—thus not curing the fundamental error created by the erroneous

manslaughter by act instruction.

      The district court’s reliance on Griffin to explain its holding in this case was

also misplaced. First, the issue in Griffin did not turn on the culpable negligence

instruction. Instead, the issue was whether a defense of misidentification in a

homicide prosecution waives all elements of the crime other than identity—

including the element of intent. We clarified in Griffin that intent remains in

dispute, and remains the burden of the State to prove, in a homicide prosecution


                                         - 13 -
even when misidentification is the defense, because intent determines what level of

offense has been committed. We explained:

              When the question before the jury is whether an unlawful
      homicide occurred, and the jury finds that the killing was not
      justifiable or excusable, the jury must then determine the degree of the
      offense based upon the intent, if any, that the State proves existed at
      the time of the homicide. A homicide found to be unlawful is not
      automatically just one offense, but will be one of several possible
      homicide offenses depending upon the nature of the intent or the lack
      of any intent at the time of the homicide. For example, if the State has
      charged first-degree murder, a necessary jury inquiry is whether the
      State proved premeditated intent to kill. Lacking that proof, the jury
      must then determine whether the defendant killed “by an act
      imminently dangerous to another and demonstrating a depraved mind
      without regard for human life.” Fla. Std. Jury Instr. (Crim.) 7.4.
      “Imminently dangerous to another and demonstrating a depraved
      mind” is defined in pertinent part as an act that “is done from ill will,
      hatred, spite, or an evil intent.” If the jury concludes that the killing
      was neither premeditated nor done with a depraved mind as that term
      is defined, the jury must then decide if the defendant is guilty of
      manslaughter by having committed an intentional act that resulted in
      death, but without any intent to kill or evil intent (depraved mind) on
      the defendant’s part. Thus, it can be seen that in every killing alleged
      to be an unlawful homicide, the jury must necessarily consider the
      intent behind the killing, or find lack of any intent behind the killing,
      before it can determine what, if any, offense has been committed.

Griffin, 160 So. 3d at 68-69. Second, Griffin did not recede sub silentio from

Haygood or modify in any respect the principle announced in that case that giving

the culpable negligence instruction does not cure the fundamental error created by

the erroneous manslaughter by act jury instruction where the evidence does not

reasonably support manslaughter by culpable negligence. The converse of this

holding, which is applicable here, is that the culpable negligence instruction can

                                        - 14 -
cure the fundamental error created by the erroneous manslaughter by act

instruction where the evidence does reasonably support manslaughter by culpable

negligence.

      In the present case, because the manslaughter by culpable negligence

instruction was given, the question becomes whether the evidence could support a

finding of that nonintentional homicide, thus curing the fundamental error created

by the erroneous manslaughter by act instruction. And, as explained in Haygood

and other cases concerning fundamental error, the fact that the evidence could

arguably support a verdict for second-degree murder, an offense also not requiring

an intent to kill, is not determinative of whether fundamental error occurred. See,

e.g., Haygood, 109 So. 3d at 741.

      The instruction for second-degree murder, in part, asks the jury to determine

if the killing was the result of an act that was “imminently dangerous to another

and demonstrating a depraved mind.” Fla. Std. Jury Instr. (Crim.) 7.4 Murder—

Second Degree. This is defined as an act done with “ill will, hatred, spite, or an

evil intent” showing “indifference to human life,” and which a person of ordinary

intelligence would know is “reasonably certain to kill or do serious bodily injury.”

Id.

      The instruction for manslaughter by culpable negligence also requires, in

part, evidence that the killing was the result of an act showing “reckless disregard


                                        - 15 -
of human life” and was an act that the defendant “must have known, or reasonably

should have known, was likely to cause death or great bodily injury.” Fla. Std.

Jury Instr. (Crim.) 7.7 Manslaughter. In these two respects the offenses have

somewhat similar elements. However, as noted above, to convict for second-

degree murder, the jury must also find that the actions demonstrate a “depraved

mind” which is proven by acts that are “done from ill will, hatred, spite, or an evil

intent.” Fla. Std. Jury Instr. (Crim.) 7.4. Manslaughter by culpable negligence has

no requirement that the jury find a depraved mind, ill will, hatred, spite, or evil

intent. See Fla. Std. Jury Instr. (Crim.) 7.7.

      Thus, where a jury determines that the evidence does not prove an intent to

kill, the jury must then determine if any lesser included offense not requiring an

intent to kill is available for their consideration and has been proven. Where the

instruction on manslaughter by culpable negligence is given as well as the

instruction for second-degree murder, the jury will examine the evidence for proof

of the level of disregard for safety and human life and for evidence, if any, of an

act imminently dangerous to another and demonstrating a depraved mind without

regard for human life. Both lesser included offenses lack any requirement of an

intent to kill. Whether the defendant is guilty of one or the other will turn in large

part on whether the defendant is proved to have committed the homicide with a

level of ill will, hatred, spite, or evil intent rising to the level of a depraved mind


                                          - 16 -
required for second-degree murder. Therefore, we examine the evidence presented

during trial to determine if it reasonably could support a finding by the jury that the

killing resulted from culpable negligence, thus providing the jury with a viable

alternative to second-degree murder that also did not require an intent to kill.

                                      This Case

      Dominique was charged with and prosecuted for first-degree murder.

Clearly, the jury did not find a premeditated intent to kill because he was convicted

of second-degree murder, an offense that does not require an intent to kill. The

jury also had the option to find him guilty of manslaughter by culpable negligence,

a lesser included offense also not requiring an intent to kill. We have examined the

evidence presented at trial and conclude that it reasonably supported the lesser

included offense of manslaughter by culpable negligence. Even though the jury

was foreclosed from finding Dominique guilty of manslaughter by act due to the

erroneous instruction, the jury still had a viable, nonintentional lesser included

homicide offense for which he could have been convicted.

      The testimony established that on the night of the shooting, Dominique was

on the telephone with his girlfriend, Vonshell Lindsay, when she told him their

breakup was final and that she was getting back together with Clementson, the

victim in this case. At that same moment, Dominique, who was sitting in a

borrowed car in Lindsay’s neighborhood, saw Clementson drive toward the house


                                        - 17 -
where Lindsay was visiting. Although Dominique was in the neighborhood, he

told police it was only to talk with Lindsay, and there was no evidence that

Dominique knew Clementson would be there. Dominique told police that he had a

gun with him in the car he borrowed from his sister, explaining to police that he

usually had it with him. When Dominique started walking toward Lindsay’s

house, Clementson drove by him. Dominique told officers that at that point, he

grabbed the gun and went after Clementson, firing “a whole bunch of shots” while

running. He told police he was shooting wildly without aiming, and that he hoped

Clementson was still alive. Witnesses also testified that Dominique was running in

the dark while firing with his arm extended. The only witness who saw Dominique

actually fire the gun testified first that he took aim, but she almost immediately

receded from that testimony and agreed that “[i]t was not like he stood there and

[sighted in on] the man before he took the shot.”

      We conclude that this evidence reasonably meets the test for “reckless

disregard for human life” and that the defendant must have known, or reasonably

should have known, that these actions were likely to cause death, as required by

the jury instruction for manslaughter by culpable negligence as well as second-

degree murder. Certainly, Dominique’s actions demonstrated want of care,

wantonness, recklessness, or gross disregard for the safety of others, as is required

under both the manslaughter by culpable negligence jury instruction and the


                                        - 18 -
instruction for second-degree murder. Accordingly, the jury had before it two

viable alternatives, neither of which required an intent to kill. It was for the jury to

determine if the evidence rose to the level of depraved mind such that second-

degree murder was proven, a conclusion the jury reached in this case.

      Because the jury was correctly instructed on manslaughter by culpable

negligence, which does not require an intent to kill, the jury did have a

nonintentional homicide offense for which they could have convicted Dominique

as an alternative to second-degree murder. Under these facts, it cannot be said that

“the verdict of guilty [of second-degree murder] could not have been obtained

without the assistance of the alleged error.” Delva, 575 So. 2d at 645 (bracketed

material added) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). Thus,

under Haygood, the fundamental error in giving the erroneous manslaughter by act

instruction was cured. For the reasons discussed, we quash the decision in

Dominique II. Because this case is before the Court on certified conflict, the

certified conflict case of Dawkins is discussed next.

                            The Certified Conflict Case

      The Fourth District in Dominique II certified conflict with the decision of

the Third District in Dawkins v. State. In Dawkins, the district court had before it

a petition for writ of habeas corpus alleging ineffective assistance of appellate

counsel for failure to move for rehearing based on the Third District’s decision in


                                         - 19 -
Cubelo v. State, 41 So. 3d 263 (Fla. 3d DCA 2010), and the Second District’s

decision in Haygood v. State, 54 So. 3d 1035 (Fla. 2d DCA 2011), both of which

this Court quashed.2 See Dawkins, 170 So. 3d at 82.

      The Third District denied the petition in Dawkins. In doing so, the court

stated that “where the jury was also instructed in manslaughter by culpable

negligence and the evidence could reasonably support so finding, the error in

giving the flawed Montgomery manslaughter by act instruction was not per se

fundamental error.” Id. at 83. Applying our holding in Haygood, the Dawkins

court concluded that there existed some disputed evidence from which the jury

reasonably could have found Dawkins guilty of manslaughter by culpable

negligence, in contrast to the facts in Haygood. See Dawkins, 170 So. 3d at 82.

Because the Third District correctly interpreted this Court’s analysis and principle

announced in Haygood, the Dawkins decision is approved.

                                  CONCLUSION

      The evidence in this case reasonably supported the lesser included offense of

manslaughter by culpable negligence. Thus, under Haygood, the giving of the



       2. On remand, the Third District reversed Cubelo’s conviction and
remanded for a new trial because of the erroneous manslaughter by act instruction.
The court concluded that the error was not cured by the culpable negligence
instruction because the evidence did support manslaughter by act but did not
support manslaughter by culpable negligence. Cubelo v. State, 137 So. 3d 1193,
1193 (Fla. 3d DCA 2014).


                                       - 20 -
manslaughter by culpable negligence instruction cured the fundamental error in the

giving of the erroneous manslaughter by act instruction. Accordingly, we quash

the decision of the Fourth District in Dominique v. State, 171 So. 3d 204 (Fla. 4th

DCA 2015), and remand to the district court with instructions to further remand to

the trial court to reinstate the conviction and sentence. We approve the conflict

decision of Dawkins v. State, 170 So. 3d 81 (Fla. 3d DCA 2015).

      It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
LAWSON, J., concurs in result only.

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

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

      Fourth District - Case No. 4D08-2031

      (Broward County)

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Celia A. Terenzio,
Bureau Chief, and Jeanine Germanowicz, Assistant Attorney General, West Palm
Beach, Florida,

      for Petitioner

Carey Haughwout, Public Defender, Richard B. Greene, and Patrick B. Burke,
Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, Florida,

      for Respondent




                                       - 21 -
