                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

MICHAEL JOE MCCOY,                  NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D14-5914

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 21, 2016.

An appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney
General, Tallahassee, for Appellee.



PER CURIAM.

      Appellant Michael J. McCoy was charged with the second-degree murder of

a man with whom he believed his wife was having an affair and of the attempted

second-degree murder of the wife. A jury found him guilty of the lesser-included

offenses of manslaughter and aggravated battery with a firearm. On appeal, he

challenges his judgment and sentence for aggravated battery with a firearm,
alleging that the jury instructions and verdict form were fundamentally erroneous

because the aggravated battery was listed after the attempted manslaughter option.

He avers that lesser offenses must be listed on a verdict form in descending order

by degree of offense; because aggravated battery is a second-degree felony (which

carries a maximum sentence of fifteen years in prison but was enhanced here by

the 10-20-Life statute to a minimum mandatory penalty of twenty-five years in

prison), it should have been listed before the attempted manslaughter offense,

which is a third-degree felony (carrying a maximum of five years in prison).

      An error in the trial court’s listing of lesser-included offenses on a verdict

form and in jury instructions is not fundamental error in this district. See Graham

v. State, 100 So. 3d 755 (Fla. 1st DCA 2012). For that reason, McCoy urges this

Court to certify conflict between Graham and the Fifth District’s decision in

Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012). In Thomas, the defendant

was convicted of aggravated battery, but the Fifth District reversed the conviction

and sentence. It remanded the case for a new trial, holding that “the trial court

fundamentally erred” in the way it listed the lesser-included offenses because “the

jury could reasonably have concluded that the offenses were presented in

descending order of seriousness and that attempted voluntary manslaughter was

less serious than aggravated battery. As such, it is impossible to determine whether

the jury, if given the opportunity, would have ‘pardoned’ the defendant by

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convicting him of attempted voluntary manslaughter under a proper instruction.”

Id. at 881-82. Because the jury was accurately instructed and the evidence supports

McCoy’s convictions obtained, we affirm the judgment and sentence at issue, but

certify conflict with Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012).

      AFFIRMED.

LEWIS, B.L. THOMAS, and MAKAR, JJ., CONCUR.




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