          Supreme Court of Florida
                                    ____________

                                   No. SC14-1150
                                   ____________

                              STANLEY MCCLOUD,
                                   Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  [January 19, 2017]

LABARGA, C.J.

      Stanley McCloud seeks review of the Fifth District Court of Appeal’s

decision in McCloud v. State, 139 So. 3d 474 (Fla. 5th DCA 2014), which the

district court issued on remand in light of this Court’s decision in Haygood v.

State, 109 So. 3d 735 (Fla. 2013). McCloud cites as authority Daugherty v. State,

96 So. 3d 1076 (Fla. 4th DCA 2012), rev. granted, 143 So. 3d 917 (Fla. 2014)

(table), a decision of another district court of appeal pending in this Court. We

have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So. 2d 418,

421 (Fla. 1981). As explained below, we approve the holding of the Fifth District,

but not the reasoning.
       As we begin, we note that this case involves a jury instruction consistent

with that deemed to be fundamentally erroneous in State v. Montgomery, 39 So. 3d

252 (Fla. 2010). The petitioner, Stanley McCloud, was convicted of second-degree

murder. He initially challenged his conviction because the jury instruction on the

required lesser included offense of manslaughter by act erroneously required the

jury to find that he intended to cause the death of the victim. At that time,

McCloud’s conviction was affirmed on the grounds that the jury also received a

jury instruction on manslaughter by culpable negligence. See McCloud v. State,

53 So. 3d 1206 (Fla. 5th DCA 2011).

       McCloud sought review of that decision in this Court. We granted

jurisdiction, quashed, and remanded in light of our decision in Haygood, which

held

       that giving the manslaughter by culpable negligence instruction does
       not cure the fundamental error in giving the erroneous manslaughter
       by act instruction where the defendant is convicted of an offense not
       more than one step removed from manslaughter and the evidence
       supports a finding of manslaughter by act, but does not reasonably
       support a finding that the death occurred due to the culpable
       negligence of the defendant.

109 So. 3d at 743; McCloud v. State, 137 So. 3d 1021 (Fla. 2014) (table).

       On remand, the district court again affirmed McCloud’s conviction, this time

concluding that the order of the lesser included offenses as presented to the jury

dictates the number of steps removed from the offense of conviction, and thus,


                                         -2-
whether a fundamental error or harmless error analysis applies. The decision of

the district court on remand is the decision currently before this Court.

       We have contemporaneously issued our opinion in Daugherty v. State, No.

SC14-860 (Fla. Jan. 12, 2017), which raises the same question of law as the

present case; that is, how to properly determine the number of steps that the lesser

included offense of manslaughter is removed from second-degree murder, the

offense of conviction. In Daugherty, we quashed the decision of the Fourth

District Court of Appeal and held that

       where a defendant is convicted of second-degree murder after the jury
       is erroneously instructed on the lesser included offense of
       manslaughter by act, the one step removed analysis to determine
       fundamental error is not based on the order of the offenses on the
       verdict form. Rather, because manslaughter as a matter of degree is a
       next lesser offense of second-degree murder, giving an erroneous
       instruction on manslaughter by act constitutes fundamental error even
       if manslaughter is not listed immediately below second-degree murder
       on the verdict form.

Id. at 2.

       Because the Fifth District in McCloud employed the same reasoning as the

Fourth District in Daugherty and applied an erroneous steps removed analysis, we

disapprove of the reasoning in McCloud. However, because we conclude that the

error caused by the incorrect instruction was cured by the jury’s consideration of

other offenses also one step removed from the offense of conviction, we approve

the ultimate holding of the district court.


                                          -3-
                FACTS AND PROCEDURAL BACKGROUND

      McCloud was charged with first-degree murder in the death of his wife,

Sandra McCloud. McCloud shot Sandra with a .357 magnum in her bedroom and

in the presence of their two small children. Sandra died from a single gunshot

wound to the chest. One of the children sustained a grazing wound from the same

gunshot. Both McCloud and Sandra had been drinking for hours before the

murder. Sandra’s blood alcohol level was .16.

      In a 911 call that he made shortly after the shooting and after leaving the

Ocala home where he shot Sandra, a distressed McCloud stated that after retrieving

his .357 magnum from his truck, he shot his wife in the chest and wanted to turn

himself in. McCloud drove to a convenience store, where he was taken into

custody. McCloud said during the 911 call:

      She—she told me she went with the roo[f] man. And I—we’ve been
      separated for eight months. And I come back and she went with the
      roo[f] man. I was on my job making good money, and she told me
      that, and I could have been still there with my job. I’m going to turn
      myself in.

McCloud repeatedly made comments such as “I didn’t mean to do it, but she made

me do it,” and “I—I’m sick and tired of this.”

      In an interview at the police station during the hours after the shooting,

McCloud continued to repeat that he shot Sandra because she relentlessly talked to

him about having another man in her life. During this interview, McCloud stated


                                        -4-
that he pointed the gun at her to scare her, but did not intend to shoot and kill her.

He suggested that he shot her in the dark at a point when the lights blinked in the

bedroom and, in contrast to the 911 call, said he thought he shot Sandra in the

shoulder. During this interview, McCloud first stated that the gun was in the truck,

but then he quickly changed his statement and said that the gun was in the bedroom

closet.

      The bullet that killed Sandra entered the right side of her chest between the

ribs, traveled through her right lung, and entered into the pericardial sac

surrounding her heart. The bullet tore the upper part of her esophagus in half and

lacerated her aorta. The bullet then grazed her left lung and exited her back. The

medical examiner suggested that Sandra may have been sitting on the edge of the

bed when she was shot, with McCloud standing one to two feet away. McCloud’s

children were in bed with his wife when McCloud fired the shots, and the bullet

grazed one of the children in the arm.1 Sandra was transported to the hospital with

no obvious signs of life and was pronounced dead.

      McCloud was convicted of the lesser included offense of second-degree

murder. The jury was also instructed on the lesser included offenses of third-




       1. McCloud entered no contest pleas to culpable negligence resulting in
injury to one of the children, and culpable negligence in exposing another child to
injury.


                                         -5-
degree felony murder and manslaughter by act. On the verdict form, third-degree

felony murder appeared between second-degree murder and manslaughter. On

appeal, the district court concluded that, as a result of the order in which the

offenses were instructed to the jury and listed on the verdict form, the erroneously

instructed offense of manslaughter by act was two steps removed from second-

degree murder, the offense of conviction. The district court stated:

      In this case, the lesser included offense of manslaughter by act was
      two steps removed from the second-degree murder conviction due to
      the inclusion of the felony murder charge in the jury instructions and
      on the verdict form.

McCloud, 139 So. 3d at 474-75. Relying on Pena v. State, the district court

determined that a harmless error analysis was appropriate. 901 So. 2d 781, 787

(Fla. 2005) (“However, when the trial court fails to properly instruct on a crime

two or more degrees removed from the crime for which the defendant is convicted,

the error is not per se reversible, but instead is subject to a harmless error

analysis.”).

      The district court concluded that the use of the erroneous manslaughter by

act instruction constituted harmless error and affirmed McCloud’s conviction and

sentence. McCloud, 139 So. 3d at 475. The district court also cited to Daugherty,

96 So. 3d 1076, which applied the same steps-removed analysis on similar facts

and concluded that the erroneous manslaughter by act instruction constituted




                                          -6-
harmless error. McCloud, 139 So. 3d at 475. At the time, this Court had granted

belated review in Daugherty, and we subsequently granted review in McCloud.

                                     ANALYSIS

      McCloud, who was convicted of second-degree murder, maintains that he is

entitled to relief because the jury received an instruction on the lesser included

offense of manslaughter by act that was consistent with the instruction held to be

fundamentally erroneous under the facts and instructions given in Montgomery, 39

So. 3d at 259. At trial, McCloud’s jury was instructed as follows:

             Manslaughter, to prove the crime of manslaughter, the State
      must prove the following two elements beyond a reasonable doubt.
      One, Sandra McCloud is dead. Two, A, Stanley McCloud
      intentionally caused the death of Sandra Gail McCloud or B, the death
      of Sandra McCloud was caused by the culpable negligence of Stanley
      McCloud.
             However, the defendant cannot be guilty of manslaughter if the
      killing was either justifiable or excusable homicide as I have
      previously explained those terms.
             In order to convict of manslaughter by intentional act, it is not
      necessary for the State to prove that the defendant had a premeditated
      intent to cause death.
             I will now define culpable negligence for you. Each of us has a
      duty to act reasonably toward others. If there is a violation of that
      duty without any conscious intention to harm, that violation is
      negligence, but culpable negligence is more than a failure to use
      ordinary care toward others.
             In order for negligence to be culpable, it must be gross and
      flagrant. Culpable negligence is a course of conduct showing reckless
      disregard of human life or the safety of persons exposed to its
      dangerous effects or such an entire want of care as to raise a
      presumption of a conscious indifference to consequences, or which
      shows wantonness or recklessness or a grossly careless disregard of
      the safety and welfare of the public or such an indifference to the

                                         -7-
      rights of others as is equivalent to an intention—intentional violation
      of such rights.
             The negligent act or omission must have been committed with
      an utter disregard for the safety of others. Culpable negligence is
      consciously doing an act or following a course of conduct that the
      defendant must have known or reasonably should have known was
      likely to cause death or great bodily injury.

      The district court acknowledged that McCloud’s jury received a faulty jury

instruction on manslaughter by act. McCloud, 139 So. 3d at 474. However, the

court concluded that because manslaughter was not placed immediately below

second-degree murder but was preceded by third-degree felony murder, a harmless

error analysis applied to the faulty instruction. In sum, the layout of the verdict

form and the jury instructions rendered manslaughter two steps removed from

second-degree murder because the lesser included offense of third-degree felony

murder was placed between them. However, as we held in Daugherty, this was

error. We explained:

             This Court has consistently observed that manslaughter, a next
      lesser included offense of second-degree murder, is one step removed
      from second-degree murder. It is this relationship between the two
      offenses that undergirds this Court’s conclusion that the erroneous
      manslaughter instruction in Montgomery constituted fundamental
      error. However, this Court has previously concluded that third-degree
      felony murder—which, like manslaughter, is also a second-degree
      felony—is also one step removed from second-degree murder. See
      Herrington v. State, 538 So. 2d 850, 851 (Fla. 1989). “Although
      third-degree felony murder is not a necessarily included offense of
      first-degree murder, it is, under certain circumstances and evidence, a
      proper permissive lesser included offense of first-degree murder,
      requiring a jury instruction to that effect.” Green v. State, 475 So. 2d
      235, 236 (Fla. 1985).

                                         -8-
No. SC14-860, at 14-15 (Fla. Jan. 12, 2017). We continued:

      The district court’s interpretation of what constitutes a step removed
      improperly focused on the appearance of the verdict form and based a
      defendant’s entitlement to relief on an arbitrary set of
      circumstances—which lesser included offense is listed first when
      drafting the verdict form. We conclude that the determination of what
      constitutes a step removed is not based on the layout of the verdict
      form, but rather, the relationship between the offense of conviction
      and the erroneous lesser included offense instruction.
             Manslaughter, a second-degree felony, is a next lesser offense
      of second-degree murder. However, as we previously observed in
      Herrington, so is third-degree felony murder (also a second-degree
      felony). Daugherty’s jury was instructed on multiple next lesser
      included offenses of the same degree of severity, and Daugherty was
      entitled to a proper instruction on each. The placement of third-
      degree felony murder on the verdict form did not, by mere virtue of its
      location between second-degree murder and manslaughter, remedy the
      error caused by the faulty manslaughter instruction. To conclude
      otherwise would leave to mere chance a defendant’s entitlement to
      relief based on how the verdict form is fashioned.

Id. at 16-17. Our analysis in Daugherty applies here.

                     Curing the Manslaughter by Act Error

      In this case, the issue of intent was pertinent and material to what the jury

had to consider to convict McCloud, who was charged with premeditated first-

degree murder. Thus, the giving of an erroneous instruction on manslaughter by

act, an offense one step removed from second-degree murder, constituted

fundamental error where it required the jury to find that McCloud intended to

cause the victim’s death. However, in Haygood, 109 So. 3d at 743, we held that

fundamental error caused by the then-erroneous standard jury instruction on

                                        -9-
manslaughter by act is not cured by the mere giving of an instruction on

manslaughter by culpable negligence unless the evidence in the case reasonably

supports a conviction of that offense. Thus, we now turn to whether the error in

this case was cured because the jury was also instructed on third-degree felony

murder, or because the jury was given the instruction on manslaughter by culpable

negligence. Both lesser included offenses are second-degree felonies which, like

manslaughter by act, are one step removed from second-degree murder.

                           Third-Degree Felony Murder

      “Although third-degree felony murder is not a necessarily included offense

of first-degree murder, it is, under certain circumstances and evidence, a proper

permissive lesser included offense of first-degree murder, requiring a jury

instruction to that effect.” Green, 475 So. 2d at 236. Thus, similar to

manslaughter by culpable negligence, the giving of the third-degree felony murder

instruction is subject to a trial court’s determination that the evidence presented

supports giving the instruction. In this case, the jury could reasonably have found

McCloud guilty of third-degree felony murder based on the underlying crime of

attempted aggravated assault with a firearm. McCloud’s jury received the

following instruction on third-degree felony murder, with the underlying felonies




                                        - 10 -
of aggravated assault with a firearm and, alternatively, attempted aggravated

assault with a firearm:

             Third degree felony murder, before you can find the defendant
      guilty of third degree felony murder, the State must prove the
      following three elements beyond a reasonable doubt. One, Sandra
      McCloud is dead. Two, A, the death occurred as a consequence of
      and while Stanley McCloud was engaged in the commission of
      aggravated assault with a firearm, or B, the death occurred as a
      consequence of and while Stanley McCloud was attempting to
      commit aggravated assault with a firearm. Three, Stanley McCloud
      was the person who actually killed Sandra McCloud.
             It is not necessary for the State to prove the killing was
      perpetrated with a design to affect death.
             If you find that Stanley McCloud committed murder in the third
      degree and you also find that during the commission of the crime he
      possessed and/or discharged and/or caused death or great bodily harm
      with a firearm, your verdict should indicate such possession and/or
      discharge of a firearm and/or caused death or great bodily harm with a
      firearm.

The jury was instructed on aggravated assault and attempted aggravated assault as

follows:

             Aggravated assault with a firearm, the crime of aggravated
      assault with a firearm consist [sic] of the following four elements.
      One, Stanley McCloud intentionally and unlawfully threatened either
      by word or act to do violence to Sandra McCloud.
             Two, at the time Stanley McCloud appeared to have the ability
      to carry out the threat. Three, the act of Stanley McCloud created in
      the mind of Sandra McCloud a well-founded fear that the violence
      was about to take place. Four, the assault was made with a firearm.
             It is not necessary for the State to prove that the defendant had
      an intent to kill.
             Attempt to commit crime, in order to prove that the defendant
      attempted to commit the crime of aggravated assault with a firearm,
      the State must prove the following beyond a reasonable doubt. One,
      Stanley McCloud did some act toward committing the crime of

                                       - 11 -
      aggravate [sic] assault with a firearm that went beyond just thinking
      or talking about it. Two, he would have committed the crime except
      that he failed.
             It is not an attempt to commit aggravated assault with a firearm
      if the defendant abandoned his attempt to commit the offense or
      otherwise prevented its commission under circumstances indicating a
      complete and voluntary renunciation of his criminal purpose.

      The State proved beyond a reasonable doubt the first element of third-degree

felony murder, that Sandra McCloud is dead, and the third element, that Stanley

McCloud killed her. However, the remaining inquiry is whether the second

element of third-degree felony murder was satisfied, which is based on whether the

underlying felony was proven.

      The jury had to find as to the second element that Sandra McCloud’s death

occurred as a consequence of and while McCloud was either engaged in the

commission of aggravated assault with a firearm or an attempt to commit

aggravated assault with a firearm.2 While the evidence may not support a finding




       2. We conclude that the evidence does not reasonably support a finding of a
completed aggravated assault. We acknowledge that McCloud pointed a gun at
Sandra and, by being in possession of the gun at that time, he appeared to be able
to carry out a threat of violence using the firearm. However, the record does not
reveal whether Sandra was actually threatened, nor does it reveal a well-founded
fear on Sandra’s part. In fact, the State emphasized that Sandra’s twenty-year-old
son, who was at the home at the time of the shooting, did not hear yelling or
fighting that night, and came to Sandra’s bedroom upon hearing a “thud.”
Moreover, McCloud’s statement that the lights went off when he shot her raises the
question whether Sandra saw McCloud with the gun.


                                       - 12 -
of a completed aggravated assault, it does reasonably support a finding of

attempted aggravated assault.

      During his interview with law enforcement after the shooting, McCloud

stated that he wanted to scare Sandra with the gun. To that end, the jury could

have found that McCloud attempted to commit aggravated assault but was unable

to complete his attempt because Sandra was unaware of the gun. The jury could

have reasonably convicted McCloud of third-degree felony murder based on the

underlying felony of attempted aggravated assault.

                                Culpable Negligence

      Moreover, the jury could have reasonably convicted McCloud of

manslaughter by culpable negligence. Although the decision below was on

remand from this Court post-Haygood, the district court failed to expressly

evaluate under a fundamental error analysis whether the evidence supported a

finding of manslaughter by culpable negligence, thus remedying the fundamental

error caused by the erroneous instruction on manslaughter by act. Rather, the

district court applied a harmless error analysis to the faulty manslaughter

instruction in McCloud because, in its view, manslaughter by act was two steps

removed from second-degree murder, the offense of conviction.

      In Haygood, we concluded that fundamental error caused by the faulty

instruction on manslaughter by act could be remedied where the jury was also


                                        - 13 -
instructed on manslaughter by culpable negligence, but only where the evidence

reasonably supported that finding. 109 So. 3d at 743. We explained that where the

manslaughter by act instruction erroneously requires intent to kill, and “the only

non-intentional homicide offense remaining for the jury’s consideration” is second-

degree murder, fundamental error results. Id. However, if the jury is also

instructed on manslaughter by culpable negligence, and there is evidence upon

which the jury could reasonably find that non-intentional offense, the error caused

by the manslaughter by act instruction is cured. Id.

      In the present case, McCloud’s jury was instructed on the offense of

manslaughter by culpable negligence as follows:

             I will now define culpable negligence for you. Each of us has a
      duty to act reasonably towards others. If there is a violation of that
      duty, without any conscious intention to harm, that violation is
      negligence, but culpable negligence is more than a failure to use
      ordinary care towards others.
             In order for negligence to be culpable, it must be gross and
      flagrant. Culpable negligence is a course of conduct showing reckless
      disregard of human life or the safety of persons exposed to its
      dangerous effects, or such an entire want of care as to raise a
      presumption of a conscious indifference to consequences, or which
      shows wantonness or recklessness or a grossly careless disregard of
      the safety and welfare of the public or such an indifference to the
      rights of others as is equivalent to an intention—intentional violation
      of such rights.
             The negligent act or omission must have been committed with
      an utter disregard for the safety of others. Culpable negligence is
      consciously doing an act or following a course of conduct that the
      defendant must have known or reasonably should have known was
      likely to cause death or great bodily injury.


                                       - 14 -
“Every case of manslaughter by culpable negligence must be determined upon the

facts and circumstances peculiar to it.” Scarborough v. State, 188 So. 2d 877, 877

(Fla. 2d DCA 1966) (citing Fulton v. State, 108 So. 2d 473 (Fla. 1959)). “There is

nothing mystical about culpability. It comprehends blame, censure or some aspect

of erratic conduct.” Fulton, 108 So. 2d at 475.

      During his interview, McCloud stated that he did not intend to shoot Sandra

and only intended to scare her after she continued to talk to him about her

relationship with another man. Both McCloud and Sandra had been drinking. The

jury could have reasonably concluded that the act of pointing a gun at Sandra while

under the influence of alcohol, and in the presence of two young children, revealed

a reckless or grossly careless disregard for her safety, and that he shot her in the

course of such reckless or grossly careless behavior. Thus, there was evidence in

the record from which a jury could reasonably find McCloud guilty of

manslaughter by culpable negligence.

                            Heat of Passion Instruction

      The State argues that fundamental error did not occur because the jury was

instructed that it could convict McCloud of manslaughter if it concluded that he

shot Sandra in the heat of passion. As a part of the instruction on second-degree

murder, the jury was instructed as follows:

           Heat of passion, heat of passion is a valid theory of defense to
      the—to the depraved mind element of second degree murder. Passion

                                         - 15 -
      is the state of mind when it is powerfully acted on and influenced by
      something external to itself. It is one of the emotions of the mind
      known as anger, rage, sudden resentment, or terror.
             Pursuant to Florida law, if you believe defendant’s passion
      resulted in a state of mind where depravity, which characterized
      murder in the second degree is absent, you may return a verdict of
      manslaughter.

While this instruction gave the jury an alternative method of convicting McCloud

of manslaughter, if the jury referred to the actual manslaughter instruction when

deciding whether McCloud acted in the heat of passion, the faulty intent language

would still have prevented it from convicting McCloud of manslaughter by act.

Thus, we do not agree with the State that the heat of passion instruction, by itself,

remedied the fundamental error caused by the instruction on manslaughter by act.

      However, the heat of passion instruction informed the jury that it could

convict McCloud of the broader crime of manslaughter. If the jury had referred

back to the manslaughter instruction, that instruction referred to not only

manslaughter by act, but also to manslaughter by culpable negligence, an offense

which was supported by the record. Moreover, the jury could reasonably have

found McCloud guilty of third-degree felony murder based on the underlying

felony of attempted aggravated assault with a firearm.

                                  CONCLUSION

      The district court engaged in an erroneous “steps removed” analysis and

improperly applied a harmless error analysis to evaluate the error caused by the


                                        - 16 -
erroneous instruction on manslaughter by act. Because the erroneously instructed

lesser included offense of manslaughter by act was one step removed from the

offense of conviction, a fundamental error analysis applies. However, with respect

to lesser included offenses, the jury was properly instructed on two comparable and

viable alternatives to manslaughter by act, both one step removed from the offense

of conviction and supported by the evidence. Moreover, as to the issue of intent,

the jury had for consideration the non-intentional lesser included offense of

manslaughter by culpable negligence, which was reasonably supported by the

evidence. Therefore, the jurors were not left with second-degree murder as the

only other non-intentional lesser included offense for which they could convict

McCloud. For these reasons, McCloud is not entitled to relief. Thus, we approve

the ultimate holding in McCloud, but not the reasoning of the Fifth District.

      It is so ordered.

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

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

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

      Fifth District - Case No. 5D09-3179

      (Marion County)




                                       - 17 -
James S. Purdy, Public Defender, and Nancy Jean Ryan, Assistant Public
Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Harold Heidt,
Bureau Chief, and Kristen Lynn Davenport, Assistant Attorney General, Daytona
Beach, Florida,

      for Respondent




                                     - 18 -
