        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         CHRISTOPHER T. DEAN,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D14-681

                               [May 18, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 50-2005-CF-004089-
AXXX-MB.

  Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

    The central issue in this case is whether the trial court erred in failing
to instruct the jury on manslaughter as a category one lesser included
offense of second-degree felony murder. We hold that, at the time of trial,
the law in this district supported the trial judge’s decision not to give the
instruction.

   Appellant Christopher Dean was found guilty of burglary and second-
degree felony murder after he and Eric Flint burglarized an apartment and
Flint was killed by the victim of the burglary during a high speed chase
while attempting to flee the scene. Originally, we affirmed the convictions.
Dean v. State, 82 So. 3d 851 (Fla. 4th DCA 2011) (Dean I). However, we
later granted a petition alleging ineffective assistance of appellate counsel
and remanded the case for a new trial. Dean v. State, 124 So. 3d 997 (Fla.
4th DCA 2013).

   On retrial, the evidence was largely the same as that described in Dean
I. 82 So. 3d at 851-52.
   Appellant was charged with second-degree felony murder in violation of
section 782.04(3)(e), Florida Statutes (2014), which states:

      When a human being is killed during the perpetration of, or
      during the attempt to perpetrate, any [burglary] by a person
      other than the person engaged in the perpetration of or in the
      attempt to perpetrate such felony, the person perpetrating or
      attempting to perpetrate such felony commits murder in the
      second degree. . . .

At the charge conference, defense counsel sought an instruction on
manslaughter and culpable negligence as lesser included offenses of
second-degree felony murder. Manslaughter is the “killing of a human
being by the act, procurement, or culpable negligence of another, without
lawful justification . . . and in cases in which such killing shall not be
excusable homicide or murder . . . .” § 782.07(1), Fla. Stat. (2014).

   The state argued that neither manslaughter nor culpable negligence
would be applicable because both would require that appellant be the one
who killed Flint. The trial court agreed with the state and denied the
request.

    “Lesser included offenses fall into two categories: necessary and
permissive.” Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006).
“Necessarily lesser included offenses are those offenses in which the
statutory elements of the lesser included offense are always subsumed
within those of the charged offense.” Id. “A permissive lesser included
offense exists when ‘the two offenses appear to be separate [on the face of
the statutes], but the facts alleged in the accusatory pleadings are such
that the lesser [included] offense cannot help but be perpetuated once the
greater offense has been.” Id. “The trial judge has no discretion in whether
to instruct the jury on a necessarily lesser included offense. Once the
judge determines that the offense is a necessarily lesser included offense,
an instruction must be given.” State v. Wimberly, 498 So. 2d 929, 932
(Fla. 1986).

    At the time of trial, our decision in Avila v. State, stated, in no uncertain
terms that “manslaughter is not a lesser-included offense” of “second-
degree felony murder.” 745 So. 2d 983, 984 (Fla. 4th DCA 1999). Like
this case, Avila involved two perpetrators who committed a burglary and
attempted robbery and the burglary victim shot one of the perpetrators in
the course of the commission of the two crimes. Id. Avila supports the
trial court’s ruling on appellant’s request for a manslaughter instruction.



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    Given Avila, we disagree with appellant’s contention that, at the time of
trial, manslaughter was a category one lesser included offense of second
degree felony murder. Reduced to its essence, manslaughter requires the
commission of an act that directly causes the death of another. See Tyus
v. State, 845 So. 2d 318, 321 (Fla. 1st DCA 2003) (“The two affirmative
elements of manslaughter are the killing and a causative link between the
death and the act . . . of the defendant.”); State v. Hare, 190 Neb. 339, 343
(Neb. 1973) (“To sustain a conviction for manslaughter, the evidence must
be sufficient to justify the finding of a causal connection between the
unlawful act and the death of the victim.”). Second-degree felony murder,
on the other hand, requires the commission of an enumerated felony, with
the death occurring “during the perpetration of” the felony, caused by a
person not engaged in the perpetration of the felony. Unlike manslaughter,
for second-degree felony murder there is no direct casual connection
between the death of the victim and an act of the defendant. Manslaughter
is thus not “always subsumed” within second-degree felony murder,
because the act that caused death is by definition committed by a person
who had nothing to do with the commission of the underlying felony. We
believe Avila to have been correctly decided.

   Appellant points to the Florida Standard Jury Instruction (Criminal)
7.5, which the Florida Supreme Court authorized “for publication and use”
after the trial in this case, in August 2014. In re Standard Jury Instructions
in Criminal Cases—Report No. 2013-03, 146 So. 3d 1110, 1110 (Fla. 2014)
(Mem).      That instruction lists manslaughter as a category one lesser
included offense of second degree felony murder. Id. at 1116. Attached to
this listing is this footnote:

      Avila v. State, 745 So. 2d 983 (Fla. 4th DCA 1999) indicates
      that manslaughter is not a Category One lesser included
      offense of second degree felony murder, but see State v.
      Montgomery, 39 So. 3d 252 (Fla. 2010).

Id. at 1142.

   This reference to Avila is curious, because that case held manslaughter
was not a category one lesser included offense of second degree felony
murder. The signal “but see” preceding the citation to Montgomery
suggests that Montgomery impacted Avila in some way.             However,
Montgomery was a case where the main charge was first degree murder,
not second degree felony murder, and the Supreme Court stated that
“[m]anslaughter is a category one lesser included offense of first-degree
murder.” 39 So. 3d at 259. We have found nothing in Montgomery that



                                     -3-
discusses second degree felony murder, so we do not read Montgomery as
overruling Avila.

   Nothing in the Supreme Court’s adoption of the 2014 revision to
Criminal Instruction 7.5 suggests that it is to be applied retroactively. In
fact, as is common with opinions authorizing jury instructions for
publication and use, the Supreme Court stated: “In authorizing the
publication and use of these instructions, we express no opinion on their
correctness and remind all interested parties that this authorization
forecloses neither requesting additional or alternative instructions nor
contesting the legal correctness of the instructions.” In re Standard Jury
Instructions in Criminal Cases, 146 So. 3d at 1111; see also Higgins v.
State, 565 So. 2d 698, 700 n.2 (Fla. 1990) (where the court found that
second degree arson was not a necessarily lesser included offense of first
degree arson despite the fact that it was listed as such on the schedule of
lesser included offenses to the standard jury instructions, and thus
amended the schedule).

   Given the shifting sands of the law when it comes to jury instructions,
see Montgomery, 39 So. 3d at 257-58, we do not suggest that trial judges
ignore the lesser included offense aspects of Instruction 7.5. The prudent
course would be for a court to give the instruction of manslaughter as a
lesser included offense when the defendant requests it; the state could
preserve the issue with an objection and then raise the issue on a cross-
appeal in the event of a conviction.

   Appellant also argues that the trial court precluded him from cross
examining the burglary victim who caused co-defendant Flint’s death by
hitting him with his car. Appellant wanted to establish that the victim had
a motive to shade his testimony because of worries that he might be
prosecuted for his conduct. We find any error to be harmless. On the
second degree felony murder charge, even the victim’s extreme
recklessness would not alter appellant’s culpability; it was undisputed
that the death occurred during the perpetrators’ flight from the crime,
which brings it within the felony murder statute. See Dean I, 82 So. 3d at
853.

  We considered the issues appellant raised with regard to sentencing
and find them to be without merit.

   Affirmed.

DAMOORGIAN and KLINGENSMITH, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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