       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         NICOLAS DOMINIQUE,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D08-2031

                             [August 5, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Charles I. Kaplan, Judge; L.T. Case No. 05-
17224CF10A.

   Carey Haughwout, Public Defender, and Richard B. Greene and
Patrick B. Burke, Assistant Public Defenders, West Palm Beach, for
appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M.
Germanowicz, Assistant Attorney General, West Palm Beach, for
appellee.

        ON REMAND FROM THE SUPREME COURT OF FLORIDA

GERBER, J.

    The defendant appeals from his second-degree murder conviction. He
argues, on remand from the Supreme Court of Florida, that the trial
court fundamentally erred by giving an erroneous manslaughter by act
instruction where the instruction pertained to a disputed element of the
offense (his state of mind) and the error was pertinent or material to what
the jury had to consider to convict him. We agree with the defendant’s
argument and reverse for a new trial.

   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, 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.

   On appeal to this court, the defendant argued that, pursuant to the
Florida Supreme Court’s decision in State v. Montgomery, 39 So. 3d 252,
259 (Fla. 2010), giving the erroneous standard jury instruction on
manslaughter by act – requiring the jury to find the killing was
intentional – was fundamental error because he was convicted of second-
degree murder, an offense which did not require any intent to kill and
which was not more than one step removed from manslaughter.

   We affirmed the defendant’s second-degree murder conviction in
Dominique v. State, 40 So. 3d 33 (Fla. 4th DCA 2010). We held that
giving the erroneous standard jury instruction on manslaughter by act
was not fundamental error where the court also gave the accompanying
manslaughter by culpable negligence instruction. Id. at 36.

  The defendant petitioned for review in the Florida Supreme Court.
While the defendant’s petition was pending, the Supreme Court, in
Haygood v. State, 109 So. 3d 735 (Fla. 2013), held:

      [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.

Id. at 737. The Supreme Court reasoned, in pertinent part:

      We have long held that fundamental error occurs in a jury
      instruction where the instruction pertains to a disputed

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      element of the offense and the error is pertinent or material
      to what the jury must consider to convict.

Id. at 741 (citation omitted).

   Following Haygood, the Supreme Court quashed our affirmance of the
defendant’s conviction in this case, and remanded his appeal to us for
reconsideration in light of Haygood. Dominique v. State, No. SC10-1746,
2014 WL 7463710 (Fla. Dec. 30, 2014).

  Following the Supreme Court’s remand, we permitted the parties to
submit supplemental briefs in light of Haygood.

   The state argues it was not fundamental error for the trial court to
have given the erroneous manslaughter by act instruction in this case
because, unlike in Haygood, the defendant here argued that the evidence
supported the accompanying manslaughter by culpable negligence
instruction.

   The defendant argues it was fundamental error for the trial court to
have given the erroneous manslaughter by act instruction, regardless of
whether the evidence supported the accompanying manslaughter by
culpable negligence instruction, because, as the Supreme Court
reasoned in Haygood, the erroneous manslaughter by act instruction
pertained to a disputed element of the offense (the defendant’s state of
mind) and the error was pertinent or material to what the jury had to
consider to convict him.

    We agree with the defendant’s argument. 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. In fact,
we already have applied that distinction in a recent post-Haygood case.
See Simon v. State, 162 So. 3d 216, 217 (Fla. 4th DCA 2015) (“We need
not consider supplemental arguments on remand because the evidence
introduced at trial leaves no reasonable possibility for a finding that the
death occurred due to the culpable negligence of the defendant.”)
(internal quotation marks omitted).

  However, that factual distinction was not central to the Supreme
Court’s reasoning in Haygood. Instead, as cited above, central to the
Supreme Court’s reasoning in Haygood was that the erroneous

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manslaughter by act instruction pertained to a disputed element of the
offense (the defendant’s state of mind) and the error was pertinent or
material to what the jury had to consider to convict the defendant in that
case. Similarly here, the erroneous manslaughter by act instruction
pertained to a disputed element of the offense (the defendant’s state of
mind) and the error was pertinent or material to what the jury had to
consider to convict the defendant in this case. Thus, fundamental error
occurred.

    The Supreme Court’s central reasoning in Haygood is what
distinguishes this case from the post-Haygood case upon which the state
relies, Berube v. State, 149 So. 3d 1165 (Fla. 2d DCA 2014). In Berube,
the Second District held that giving the erroneous manslaughter by act
instruction along with an accompanying manslaughter by culpable
negligence instruction was not fundamental error where the defendant’s
theory of defense was misidentification, not that he lacked the requisite
state of mind.      Id. at 1174-75.    Thus, in Berube, the erroneous
manslaughter by act instruction did not pertain to a disputed element of
the offense (identity) and the error was not pertinent or material to what
the jury had to consider to convict the defendant in that case. Here, the
erroneous manslaughter by act instruction pertained to a disputed
element of the offense (the defendant’s state of mind) and the error was
pertinent or material to what the jury had to consider to convict the
defendant in that case.

   Moreover, Berube’s viability is questionable. After the Second District
issued Berube, our Supreme Court, in Griffin v. State, 160 So. 3d 63 (Fla.
2015), held that giving the erroneous manslaughter by act instruction
was fundamental error even where the sole defense was
misidentification.   According to the Court:          “[A] sole defense of
misidentification does not concede or fail to place in dispute intent or any
other element of the crime charged except identity when the offense
charged is unlawful homicide.” Id. at 67. The Court reasoned: “It defies
logic to conclude that expressly disputing the identity of the perpetrator
and remaining silent on the remaining elements of the crime would
concede all the elements but identity. The State’s burden of proof does
not change simply because the defendant speaks up and contests one
element, such as his identity as the perpetrator.” Id. at 68. Given the
Court’s holding and reasoning, we question Berube’s viability.

  In fact, the Second District, after considering Griffin, implicitly
appears to have receded from Berube in Gland v. State, 40 Fla. L. Weekly
D1343 (Fla. 2d DCA June 5, 2015), where our sister court held:


                                     4
      [T]he reasoning applied in Griffin compels the same result
      here where [the defendant] too challenged only his identity
      as the perpetrator but did not concede any other elements of
      the charged offense. We therefore conclude that the trial
      court committed fundamental error in giving the standard
      jury instruction on the lesser included offense of
      manslaughter by act. [The misidentification] defense did not
      remove the intent issue from the jury’s consideration, and
      the giving of the instruction on manslaughter by culpable
      negligence was not sufficient to correct the error.

(citation omitted).

   Based on the foregoing, we reverse and remand for a new trial on the
charge of second-degree murder. We further instruct the trial court that
if the outcome of the proceedings on remand would result in a
recalculated sentencing scoresheet, then the trial court shall consider a
revised scoresheet and resentence the defendant.

    In reaching our decision, we certify conflict with a recent Third
District opinion, Dawkins v. State, 40 Fla. L. Weekly D1426 (Fla. 3d DCA
June 17, 2015), in which our sister court addressed the instant issue,
albeit in the context of denying a petition for writ of habeas corpus
alleging ineffective assistance of counsel where counsel failed to move for
rehearing based on Haygood. The defendant argued that his second-
degree murder conviction must be reversed because the erroneous
manslaughter by act instruction was read to the jury, and pursuant to
Haygood, the additional instruction on manslaughter by culpable
negligence did not cure the error. The Third District, in denying the
petition, reasoned:

      Upon review of the record in [the defendant’s] case, there
      was conflicting testimony regarding intent, and although [the
      defendant] did not rely on a culpable negligence defense, the
      record shows there existed, in all of the disputed evidence
      below, some evidence from which the jury reasonably could
      have found [the defendant] guilty of manslaughter by
      culpable negligence, in contrast to the facts in Haygood.
      With that in mind, 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.


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(internal citations omitted).

   In contrast to the Third District, 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.

   Reversed and remanded for proceedings consistent with this opinion;
conflict certified.

CIKLIN, C.J., and STEVENSON, J., concur.1

                            *        *         *

    Not final until disposition of timely filed motion for rehearing.




1Judge Stevenson has substituted for Associate Judge Jack S. Cox, who served
on the panel which issued Dominique v. State, 40 So. 3d 33 (Fla. 4th DCA
2010).

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