          Supreme Court of Florida
                                   ____________

                                   No. SC13-2450
                                   ____________

                         STEVE LAWRENCE GRIFFIN,
                                 Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  [March 12, 2015]

LABARGA, C.J.

      Steve Lawrence Griffin seeks review of the decision of the Second District

Court of Appeal in Griffin v. State, 128 So. 3d 88 (Fla. 2d DCA 2013), on the

ground that it expressly and directly conflicts with a decision of this Court in State

v. Montgomery, 39 So. 3d 252 (Fla. 2010), and decisions of other district courts on

a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The

question before us is whether the giving of an erroneous manslaughter by act jury

instruction cannot be found to be fundamental error if the defendant’s sole defense

is misidentification. For the reasons that follow, we quash the Second District’s

decision in Griffin.
                          BACKGROUND AND FACTS

      Griffin was charged with the January 15, 2011, second-degree murder of

Thomas Jamar Mills, who was killed by a shotgun blast while sitting in a Ford

Expedition vehicle at “The Purple Store” in Sarasota. The evidence showed that

Griffin, Mills, and his girlfriend, Ester Deneus, were friends. Griffin did not deny

being in his truck parked on the passenger side of Mills’ vehicle at The Purple

Store. Deneus testified that after getting out of the passenger side of the

Expedition and heading toward the store, she heard Griffin say to Mills, “What’s

up now, TJ?” She heard Mills respond with something to the effect of “What do

you mean, what’s up?” and “You want to play with guns now?” Deneus testified

that she heard a gunshot and saw Griffin pull what appeared to be a long gun back

into the driver’s side window of his truck and then speed away very quickly.

      The State presented evidence that on the day of the shooting, Griffin and

Mills had an argument at the home that Mills and Deneus shared, and that Mills

physically picked Griffin up and placed him outside the door. According to

Deneus, Griffin’s pants fell down and everyone laughed. Griffin testified in his

own defense that he was good friends with Mills and that they all frequently teased

each other and joked around. He told the jury that he was not mad at Mills that day

and that he did not hear any laughter when his pants fell down. Griffin also

testified that prior to Mills’ death, he had observed Mills carrying large amounts of


                                         -2-
cash as well as drugs, and that on the morning of the shooting, Mills had asked

Griffin to deliver some drugs for him, but Griffin refused. According to Griffin, on

the evening that the shooting occurred, he was driving with a friend who wanted to

go to The Purple Store to buy single cigarettes, which The Purple Store was

reported to sell. Griffin testified that he and his friend were in Griffin’s truck at an

intersection across from where Mills’ vehicle was stopped. Griffin said he made a

U-turn to go to The Purple Store but denied he did it to follow Mills. Once he

made the U-turn, he said he was behind Mills’ vehicle and both vehicles pulled

into the parking lot of The Purple Store. Griffin testified that he did park next to

the passenger side of Mills’ vehicle where Deneus exited, and that he and Mills did

speak. Griffin said he then closed his window and listened to the radio with the

sound “all the way up.” He testified that when he saw an individual wearing a

black jacket walk in front of Mills’ SUV, pull out a sawed-off shotgun, and shoot

Mills, he got scared and drove away.

      At the conclusion of the trial, the judge instructed the jury that to prove the

crime of second-degree murder, the State must prove that the killing of Mills was

by an act imminently dangerous to another and demonstrating a depraved mind

without regard for human life. Pursuant to the standard jury instruction for second-

degree murder, the judge defined depraved mind, in pertinent part, to include ill

will, hatred, spite, or evil intent. Fla. Std. Jury Instr. (Crim.) 7.4. The judge


                                          -3-
further instructed the jury that to prove second-degree murder, the State did not

need to prove the defendant intended to cause death. As to the lesser included

offense of manslaughter, the court instructed the jury, in pertinent part, that the

State must prove “Steve Griffin intentionally caused the death of Thomas J. Mills.”

No objection was lodged to this instruction, even though in 2010 we held that the

same instruction was erroneous because intent to cause death was not an element

of the crime of manslaughter by act.1 Griffin was convicted of second-degree

murder and sentenced to forty-five years in prison, with a twenty-five-year

minimum mandatory term.

      On appeal to the Second District Court of Appeal, Griffin raised this

erroneous manslaughter instruction as fundamental error, citing Montgomery. In

Montgomery, we held that use of the erroneous 2006 standard jury instruction as to

manslaughter by act, requiring that in order to convict for that lesser offense the

jury must find that the defendant intended to cause the death of the victim, was

fundamental error where the defendant was convicted of a crime no more than one

step removed from manslaughter. Montgomery, 39 So. 3d at 259. We also

explained in Montgomery:

      “fundamental error occurs only when the omission is pertinent or
      material to what the jury must consider in order to convict.” Failing to
      instruct on an element of the crime over which the record reflects there

      1. Section 782.07, Florida Statutes (2011).


                                         -4-
      was no dispute is not fundamental error and there must be an objection
      to preserve the issue for appeal.

Montgomery, 39 So. 3d at 258 (quoting State v. Delva, 575 So. 2d 643, 644-45

(Fla. 1991)).

      The Second District agreed that the jury instruction on manslaughter given

by the trial court in Griffin’s case was erroneous. Griffin, 128 So. 3d at 89.

However, the district court rejected the claim of fundamental error, explaining:

             The State also argues that giving the instruction in this case did
      not constitute fundamental error because the intent element was not
      disputed at trial. We agree. The supreme court has “long held that
      fundamental error occurs in a jury instruction where the instruction
      pertains to a disputed element of the offense and the error is pertinent
      or material to what the jury must consider to convict.” Haygood v.
      State, 109 So. 3d 735, 741 (Fla. 2013) (citing State v. Delva, 575 So.
      2d 643, 644-45 (Fla. 1991)). This standard is equally applicable in the
      context of the Montgomery instruction on manslaughter by act. See
      Daniels v. State, 121 So. 3d 409, 409, 417 (Fla. 2013); Haygood, 109
      So. 3d at 742; Montgomery, 39 So. 3d at 258.
             In this case, the State presented eyewitness testimony that
      Griffin pulled up next to the victim’s vehicle in a convenience store
      parking lot and had words with him through the windows. Then
      Griffin pulled out a long black gun, put it through the window, and
      shot the victim in the neck where he sat. Griffin’s sole defense was
      mistaken identity. Griffin admitted that he pulled his vehicle up next
      to the victim’s vehicle and had a conversation with him. He claimed
      that an unknown individual walked between the vehicles to the
      victim’s window, pulled out a shotgun, pointed it at the victim, and
      shot him.
             Griffin did not argue that the manner of the shooting did not
      establish the requisite intent; he simply argued that he was not the
      perpetrator. There is no dispute regarding the elements of an offense
      when the manner of the crime is conceded and the sole defense is
      mistaken identity. Battle v. State, 911 So. 2d 85, 89 (Fla. 2005).
      Because there was no dispute regarding the element of intent, the

                                         -5-
      erroneous jury instruction on the intent element of the lesser included
      offense of manslaughter did not constitute fundamental error.

Griffin, 128 So. 3d at 90. Thus, the district court rejected the claim of fundamental

error in Griffin’s case because, it concluded, when Griffin claimed

misidentification, he failed to place any of the other elements of the offense in

dispute, including the element of intent. The Fourth District Court of Appeal has

disagreed with the contention that a defense of misidentification concedes the

intent by which the homicide was committed. See Wimberly v. State, 39 Fla. L.

Weekly D1884 (Fla. 4th DCA Sep. 3, 2014) (“We do not agree with the State’s

argument that the issue of intent was not disputed. Although petitioner argued

misidentification at trial, he did not concede the intent with which the shooting was

committed.”). We are therefore called upon to decide if the Second District was

correct when it held that Griffin’s sole defense of misidentification conceded, or

failed to place in dispute, the issue of intent.

                                      ANALYSIS

      The issue in this case presents a pure question of law; thus, our review is de

novo. See, e.g., Puglisi v. State, 112 So. 3d 1196, 1204 (Fla. 2013); D’Angelo v.

Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003). We begin by reaffirming that our

precedent requires that, for an unpreserved error in jury instruction to be found

fundamental on appeal, the error must be “pertinent or material to what the jury

must consider in order to convict.” Montgomery, 39 So. 3d at 258 (quoting Delva,

                                           -6-
575 So. 2d at 645). However, we are constrained to hold that 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 an

unlawful homicide. The district court concluded that where identity is the defense,

“[t]here is no dispute regarding the elements of an offense when the manner of the

crime is conceded and the sole defense is mistaken identity.”2 Griffin, 128 So. 3d

at 90. The district court therefore assumed that the “manner of the crime” in this

case included the intent with which the crime was committed, that intent being ill

will, spite, or evil intent required for second-degree murder. However, the

“manner” of the crime was simply death by gunshot. Because he testified that he




       2. The district court relied on our decision in Battle v. State, 911 So. 2d 85
(Fla. 2005), in which we held no fundamental error occurred in a faulty instruction
on an essential element of attempted felony murder. However, the element at issue
in Battle was whether the defendant committed, aided, or abetted an intentional act
that was not an essential element of the underlying felony of attempted robbery.
We stated, “It was undisputed that [the victim] was shot in the head, an act that
was not an essential element of the attempted robbery.” Id. at 87. We noted in
Battle that the defendant did not dispute that the crime occurred, but claimed
misidentification. Our analysis in Battle is not dispositive here, where the matter at
issue involves the question of intent behind the shooting, which determines what
level of unlawful homicide has been committed; whereas, in Battle, the question
was whether the undisputed shooting was an essential element of the underlying
felony of attempted robbery. Moreover, in Battle, we cited the case of Morton v.
State, 459 So. 2d 322, 324 (Fla. 3d DCA 1984), as an example of a case in which
the crime of robbery was “not disputed.” Id. In Morton, defense counsel expressly
conceded in opening statement that the defense was not disputing the fact that the
victims were robbed. Id.


                                         -7-
saw Mills shot, Griffin can be said to have conceded that Mills died by gunshot,

but he cannot be found to have expressly or impliedly conceded the intent

underlying that shooting simply by challenging the element of identity of the

shooter. Griffin did not concede any element of second-degree murder by

testifying and asserting that he did not pull the trigger.

      The district court’s analysis and conclusion overlook the fact that Griffin did

not have an obligation to argue that the manner of the shooting did not establish the

requisite intent, or to expressly dispute any other elements of the crime. Without

dispute, Mills was killed by a gunshot through the window of the vehicle in which

he was sitting. This simple fact, standing alone, does not establish the intent, or

lack of intent, by which the shooting occurred—and thus it does not establish what

degree of homicide may have been committed. It must be remembered, as we said

long ago, that “[t]he plea of not guilty puts in issue every material element of the

crime charged in the information, and before a jury is warranted in returning a

general verdict of guilty against an accused every material element of the crime

charged must be proved to their satisfaction beyond all reasonable doubt.” Licata

v. State, 88 So. 621, 622 (Fla. 1921).

      Where a defendant sits mute and exercises his or her right to remain silent,

the burden is on the State to prove all elements involved in the degree of the

homicide for which the defendant is convicted. It defies logic to conclude that


                                          -8-
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.

       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


                                           -9-
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.

      Certainly, where a defendant expressly concedes one or more elements of a

crime, those elements can be characterized as no longer in dispute for purposes of a

fundamental error analysis. See, e.g., Stewart v. State, 420 So. 2d 862, 863 (Fla.

1982) (holding that failure to instruct on element of intent to permanently deprive

another of property in robbery prosecution was not fundamental error where the

defendant “admitted that he stole personal property from the victim”); Morton, 459

So. 2d at 324 (element of intent to permanently deprive not in dispute where

defendant conceded robbery occurred). In the present case, other than the fact that

Mills was shot, Griffin did not concede any other elements of the crime charged;

he simply contested his identity as the perpetrator. The State’s burden still

remained to prove that the shooting was done with a depraved mind, but without

intent to kill, as set forth in the standard jury instructions. Thus, we conclude that

intent remained a matter that was pertinent or material to what the jury must




                                         - 10 -
consider in order to convict Griffin of the crime charged or a lesser included

offense, notwithstanding his claim of misidentification.3

      A defendant is entitled to an accurate instruction on the charged offenses and

all lesser included offenses. See Montgomery, 39 So. 3d at 258; see also Williams

v. State, 123 So. 3d 23, 29 (Fla. 2013); Haygood, 109 So. 3d at 742 (citing

Montgomery, 39 So. 3d at 258). We explained in Montgomery, “Characterized by

what it is not, manslaughter is considered a residual offense. Consequently, we

have held that the failure to provide a complete instruction on manslaughter may

constitute fundamental error.” Montgomery, 39 So. 3d at 258 (citation omitted).

“This is true regardless of whether there is ample evidence to convict the defendant

of the higher crime.” Williams, 123 So. 3d at 29. “ ‘[W]hether the evidence of

guilt is overwhelming or whether the prosecutor has or has not made an inaccurate

instruction a feature of the prosecution’s argument are not germane to whether the

error is fundamental.’ ” Id. (quoting Reed v. State, 837 So. 2d 366, 369 (Fla.

2002)).

      In this case, once the jury determined that the homicide was not justifiable or

excusable, the intent underlying the unlawful homicide was pertinent or material to



       3. Moreover, even though Griffin had no burden to prove the intent by
which the homicide occurred, or his lack of intent, we note that the evidence in this
case, the argument of counsel, and the jury instructions themselves did place the
element of intent in dispute.


                                       - 11 -
what the jury had to consider in order to convict Griffin of second-degree murder

or the lesser offense of manslaughter by intentional act. Griffin’s claim of

misidentification did not concede the element of intent as to the shooting, and he

was entitled to an accurate instruction as to manslaughter, which he did not

receive. By convicting Griffin of second-degree murder, the jury necessarily found

that he possessed no intent to kill—and the State conceded as much by charging

second-degree murder. In addition, the jury was instructed that “[i]n order to

convict of Second Degree Murder, it is not necessary for the State to prove the

defendant had an intent to cause death.” Because the manslaughter instruction

given to the jury erroneously required that to convict for the lesser included offense

of manslaughter by act, the jury must find Griffin committed an act intended to

cause Mills’ death, the jury was essentially foreclosed from finding Griffin guilty

of that lesser offense when they found he had no intent to kill.

                                  CONCLUSION

      Manslaughter is a category one lesser included offense of second-degree

murder for which a defendant is entitled to a correct instruction. Both second-

degree murder and manslaughter are homicide offenses that involve the issue of

“intent”—either ill will, hatred, spite, or evil intent as is embodied in the depraved

mind element of second-degree murder or the lack of any intent to kill as in the

offense of manslaughter. Thus, the intent with which a homicide occurs is a matter


                                        - 12 -
that is pertinent or material to what the jury must consider in order to convict a

defendant of either crime. Because Griffin was convicted of second-degree

murder, an offense only one step removed from manslaughter, and because he did

not concede the intent by which the homicide was committed, proof of that issue

remained on the State, and remained in dispute notwithstanding Griffin’s defense

of misidentification. Thus, fundamental error occurred which requires a new trial.

Accordingly, we quash the decision of the Second District in Griffin v. State, and

remand this case for a new trial.

      It is so ordered.

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

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.

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

      Second District - Case No. 2D11-4728

      (Sarasota County)

Howard L. Dimmig, II, Public Defender, and Karen Mary Kinney, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Robert Jay Krauss,
Bureau Chief, and Dawn A. Tiffin, Assistant Attorney General, Tampa, Florida,

      for Respondent

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