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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



STEVEN D. HOLLAND,                  )
                                    )
           Appellant,               )
                                    )
v.                                  )                 Case No. 2D07-5776
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed August 22, 2014.

Appeal from the Circuit Court for Sarasota
County; Deno G. Economou, Judge.

Howard L. Dimmig, II, Public Defender, and
Pamela H. Izakowitz, Assistant Public
Defender, Bartow, for Appellant.

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

                              ON REMAND FROM THE
                           SUPREME COURT OF FLORIDA

SILBERMAN, Judge.

             In November 2007, Steven D. Holland was convicted of attempted first-

degree murder and second-degree murder for the shooting of his on-again, off-again

girlfriend and the man she agreed to meet one night after her bartending shift. This

court affirmed and rejected Holland's challenge to his second-degree murder conviction
based on what he asserted was an erroneous jury instruction for the lesser-included

offense of manslaughter by act. See Holland v. State, 22 So. 3d 129, 130 (Fla. 2d DCA

2009).1 The case law regarding this jury instruction has significantly developed since

then, and the Florida Supreme Court recently quashed our decision and remanded for

reconsideration of the jury instruction issue. See Holland v. State, 137 So. 3d 1020,

1020 (Fla. 2014) (table). Upon reconsideration, we affirm Holland's conviction for

attempted first-degree murder but reverse the second-degree murder conviction and

remand for a new trial.

              After we affirmed Holland's convictions on direct appeal, the supreme

court ruled that the standard jury instruction on manslaughter by act that was given in

this case is erroneous because it requires an intent to kill. See State v. Montgomery, 39

So. 3d 252, 257 (Fla. 2010). The court also ruled that if defense counsel does not

object to this instruction at trial reversal will be required on appeal only upon a

determination that the instruction gave rise to fundamental error. See id. at 258. And

the court set forth the following two-part test for determining whether the erroneous

manslaughter by act instruction gave rise to fundamental error: (1) the defendant must

have been convicted of an offense not more than one step removed from manslaughter

by act, and (2) the element of intent must have been in dispute and therefore pertinent

to what the jury had to consider in reaching its verdict. See Haygood v. State, 109 So.

3d 735, 740 (Fla. 2013); Montgomery, 39 So. 3d at 258-59.




              1
              We also rejected Holland's challenge to the admission of certain
evidence, and we do not address that issue further.


                                            -2-
              Because defense counsel failed to object to the erroneous manslaughter

instruction at trial, we must determine whether it gave rise to fundamental error. There

is no dispute that Holland's conviction for second-degree murder is not more than one

step removed from manslaughter by act. The determinative issue upon reconsideration

is whether the element of intent was in dispute and therefore pertinent to what the jury

had to consider in reaching its verdict.

              When the element of intent is in dispute, the faulty manslaughter by act

instruction deprives the jury of its ability to decide whether the defendant's lack of intent

to kill in conjunction with the attendant circumstances established the crime of

manslaughter by act. Haygood, 109 So. 3d at 743. In Haygood, because the jury

determined that the defendant did not have the intent to kill, the only applicable non-

intentional offense remaining for consideration was second-degree murder. And

because the jury was improperly instructed as to manslaughter, it was "deprived of all

the tools it need[ed] to reach a proper verdict." Id.

              At trial, the State presented evidence that Holland and Kelly McKenna had

been involved in a tumultuous on-again, off-again relationship. McKenna was

bartending at a pub on the night of the shooting. During her shift, she met a man

named Derek Blanton and agreed to meet up with him after work. At 3:15 a.m.,

McKenna pulled her car up next to Blanton's in the pub parking lot. As she was

speaking to Blanton and his passenger through her front passenger side window,

Holland appeared outside her driver side window. Holland was jealous and told

McKenna she was going home with him. Blanton intervened, and Holland and Blanton

got into a fistfight. Blanton appeared to be getting the better of Holland, but Blanton's




                                            -3-
friend was able to separate the two men. Holland returned to his car and got inside.

Blanton and McKenna approached Holland's car, and the three started arguing again.

              What happened next was hotly disputed at trial. Holland testified that

Blanton punched him in the head while Holland was sitting in his car, and Blanton's

friend corroborated this in his statement to the police. But Blanton's friend recanted at

trial, and McKenna did not see Blanton punch Holland through the window. It is

undisputed that Holland reached into his glove compartment, pulled out a .38 caliber

revolver, and fired two shots. One of the shots went through McKenna's thumb and

struck Blanton in the back and killed him.

              Holland fled the scene and was located by the police not long afterward.

He initially asserted that he left the scene before any shots were fired. He eventually

admitted that he fired the shots but claimed that he did so in self-defense. Importantly,

Holland never admitted that he intended to shoot Blanton or McKenna. He consistently

maintained that he fired the gun in Blanton's general direction to stop Blanton from

pummeling Holland in his car.

              The supreme court has held that when a defendant argued that he

intended to shoot a firearm but did not intend to kill the victim, the element of intent was

in dispute for purposes of the fundamental error analysis. See Daniels v. State, 121 So.

3d 409, 418 (Fla. 2013). In Daniels, the defendant was involved in an altercation when

he and some friends went to confront his former girlfriend's new boyfriend. Id. at 411.

When the defendant and his friends approached, they were met by the boyfriend and a

group of his friends. The defendant retreated, procured a firearm, and returned to the

scene. He was again approached by the boyfriend and his group of friends. Assuming




                                             -4-
that they had a gun, the defendant fired a shot toward the group and fled the scene.

The shot struck and killed a female bystander.

              At his trial for first-degree murder, the defendant in Daniels claimed that

he did not intend to kill anyone but that he fired the gun into the crowd to scare them

away. Id. at 418. His testimony was corroborated by a friend's testimony that, when he

retrieved the gun, the defendant told her he intended to use it to scare someone. Based

on the evidence and arguments presented, the supreme court concluded that the

defendant's intent was in dispute.

              This court relied on Daniels to conclude that a defendant's intent was in

dispute for purposes of the fundamental error analysis in Horne v. State, 128 So. 3d

953, 957 (Fla. 2d DCA 2013). In Horne, the defendant was convicted of second-degree

murder based on evidence that he pulled out a gun during a fistfight and fired it at his

opponent. Id. at 955. In determining that the defendant's intent was at issue, this court

explained that the defendant testified that he intended to shoot the victim in the leg

because the defendant felt his life was threatened. Id. at 956-57. And defense counsel

argued that the defendant did not intend to kill the victim but shot at the victim to protect

himself. Id. at 957. See also Lopez v. State, 136 So. 3d 1265, 1266 (Fla. 2d DCA

2014) (determining that the defendant's intent was at issue when the defendant

admitted that he threw a knife at the victim but argued that he did not intend to kill the

victim and acted in self-defense).

              In this case, as in Daniels and Horne, Holland asserted that he intended to

shoot a firearm but did not intend to kill Blanton or McKenna. Both Holland and defense

counsel repeatedly emphasized that Holland shot in Blanton's direction, as opposed to




                                            -5-
directly at Blanton. Arguably, this testimony was supported by the physical evidence

suggesting that Holland's bullet struck McKenna's thumb first and then fatally injured

Blanton.

              If the jury found that Holland did not have the intent to kill but that his acts

were not justifiable or excusable under the law, the jury would have had to determine

whether Holland's lack of intent to kill, when considered with all the other evidence, fit

within the elements of the offense of second-degree murder or manslaughter by act.

But the erroneous manslaughter instruction rendered second-degree murder the only

offense realistically available to the jury and therefore deprived it of all the tools it

needed to reach a proper verdict. Thus, the element of intent was in dispute, and the

erroneous manslaughter by act instruction gave rise to fundamental error.

              We reject the State's argument that our recent decisions in Richards v.

State, 128 So. 3d 959 (Fla. 2d DCA 2013), and Saldana v. State, 139 So. 3d 351 (Fla.

2d DCA 2014), require a different holding. In Richards, the defendant was convicted of

attempted second-degree murder2 based on evidence that he stabbed the victim in the

neck during an altercation. 128 So. 3d at 961. The defendant admitted that he stabbed

the victim but claimed he did so in self-defense to keep from being choked to death.

This court rejected the defendant's argument that the attempted manslaughter

instruction was fundamentally erroneous in part because the element of intent was not

disputed at trial. Id. at 963. This court explained its reasoning as follows:




               2
                 The instruction for attempted manslaughter was held to be erroneous
because it suffered from the same defect as the instruction for the completed crime of
manslaughter. See Williams v. State, 123 So. 3d 23, 27 (Fla. 2013). The fundamental
error analysis is the same for both crimes. See id. at 29.


                                              -6-
             Mr. Richards never claimed that he did not intend to kill Mr.
             Russell. Mr. Richards' sole defense was that the stabbing
             was done in self-defense. So, in deciding whether to find
             Mr. Richards guilty of attempted second-degree murder or
             any of the lesser offenses, the only issue that was disputed
             that the jury had to consider was whether Mr. Richards'
             actions were justified as self-defense.

Id.

             In Saldana, this court relied on Richards to determine that the attempted

manslaughter by act instruction did not give rise to fundamental error because the

element of intent was not disputed at trial. 139 So. 3d at 353. This court explained that

the defendant never disputed that he intended to shoot the victim and that his sole

defense was self-defense. "Thus, the only disputed issue for the jury to consider was

whether Saldana's use of force was justified as self-defense." Id.; see also Brown v.

State, 39 Fla. L. Weekly D1350, D1350 (Fla. 2d DCA June 27, 2014) ("[T]he only

disputed issues the jury had to consider in deciding whether to find Mr. Brown guilty of

second-degree murder or manslaughter were whether his friend shot the victim or, if

not, whether Mr. Brown's actions were justified as self-defense.").

             We find this line of cases inapposite because Holland never admitted that

he intended to kill Blanton and both Holland and defense counsel repeatedly

emphasized that Holland shot in Blanton's direction, as opposed to directly at Blanton.

While Holland's main defense was that he was justified in his actions because he was

attacked by Blanton, self-defense was not Holland's only theory of defense. If the jury

found that his acts were not justifiable or excusable under the law, it would have been

required to consider whether Holland's intent, when considered with all the other




                                           -7-
evidence, fit within the elements of the offense of second-degree murder or

manslaughter by act.

              In summary, the standard jury instruction on manslaughter by act that was

given in this case is erroneous because it requires an intent to kill. Although defense

counsel did not object to this instruction at trial, it gave rise to fundamental error

because: (1) Holland was convicted of an offense no more than one step removed from

manslaughter by act, and (2) the element of intent was in dispute and therefore

pertinent to what the jury had to consider in reaching its verdict. Accordingly, we affirm

Holland's conviction for attempted first-degree murder but reverse the second-degree

murder conviction and remand for a new trial.

              Affirmed in part, reversed in part, and remanded.



KELLY and WALLACE, JJ., Concur.




                                             -8-
