          Supreme Court of Florida
                                   ____________

                                   No. SC14-860
                                   ____________

                            THOMAS DAUGHERTY,
                                 Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                 [January 19, 2017]

LABARGA, C.J.

      Thomas Daugherty seeks review of the decision of the Fourth District Court

of Appeal in Daugherty v. State, 96 So. 3d 1076 (Fla. 4th DCA 2012). Daugherty

cited as authority the district court decisions in Haygood v. State, 54 So. 3d 1035

(Fla. 2d DCA 2011), rev. granted, 61 So. 3d 410 (Fla. 2011) (table), and Williams

v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So. 3d 1262 (Fla.

2011) (table), both of which were reversed by this Court.1 We have jurisdiction.

See art. V, § 3(b)(3), Fla. Const. Upon review, we quash the decision of the



      1. See Haygood v. State, 109 So. 3d 735 (Fla. 2013); Williams v. State, 123
So. 3d 23 (Fla. 2013).
district court and hold 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. In this case, the error caused by a faulty

instruction on manslaughter by act was not cured by the jury’s consideration of

other offenses that were also one step removed. Thus, we remand this case with

instructions that Daugherty be granted a new trial for the homicide of Norris

Gaynor.

      Additionally, because the jury convicted Daugherty of attempted second-

degree murder after being erroneously instructed on attempted voluntary

manslaughter, we remand this case with instructions that Daugherty be granted a

new trial for the attempted homicides of Jacques Pierre and Raymond Perez.

                FACTS AND PROCEDURAL BACKGROUND

      Daugherty was convicted of one count of second-degree murder and two

counts of attempted second-degree murder. These convictions stemmed from a

series of three separate events during the early morning hours of January 12, 2006,


                                        -2-
when Daugherty and two codefendants beat three homeless men in Fort

Lauderdale. Victim Norris Gaynor died from his injuries hours after the attack.

Victims Jacques Pierre and Raymond Perez survived their injuries. Daugherty was

seventeen years old at the time of the crimes.

      At trial, multiple witnesses, including codefendant William “Billy”

Ammons, testified that Daugherty was present during the attacks on each victim.

Ammons testified that after smoking marijuana and drinking at his home during

the early morning hours of January 12, 2006, he, Daugherty, Brian Hooks, and

Joey Griffith decided to ride to the beach. Ammons was the driver. While in the

vicinity of Florida Atlantic University, either Daugherty or Hooks suggested that

they “mess with” a man they saw sitting on a bench. All agreed, and Ammons

parked his vehicle. Daugherty and Hooks took baseball bats with them and

approached the man (Jacques Pierre). Daugherty and Hooks swung their bats at

Pierre. Ammons testified that Daugherty’s swing missed Pierre, while Hooks hit

Pierre in the shoulder. Immediately afterwards, Ammons, Daugherty and the

others ran back to Ammons’ vehicle. The attack on Pierre was captured on

surveillance video.

      The group returned to Ammons’ home and began smoking more marijuana

and drinking. Each agreed to go out again and find another victim. While en route

to another location, they rode past the location where they attacked Pierre and saw


                                        -3-
yellow crime tape. Ammons parked near the local performing arts center, and

Hooks and Daugherty went in search of another person to attack. The group

approached a man (Norris Gaynor) who was laying on a bench. Daugherty hit

Gaynor in the head with a baseball bat while Ammons, who was armed with a

paintball gun, fired it multiple times. Daugherty and Hooks ran away, but they

reapproached Gaynor after seeing him try to get up from the bench. Hooks hit

Gaynor with a rake and Daugherty again hit Gaynor with the bat.

      Ammons and Griffith left the area without Daugherty and Hooks, but later

met up with them. They all returned to Ammons’ home, and Griffith eventually

departed from the others. Ammons, Daugherty, and Hooks continued to smoke

marijuana and drink alcohol, after which they left Ammons’ home in search of a

third person to attack. Hooks, who was driving this time, parked his vehicle and

retrieved a golf club and a play sword from inside the vehicle. Hooks gave

Ammons the sword. Daugherty was armed with a baseball bat. The three started

walking toward one man with the intent to attack him. However, they were

distracted by another man, Raymond Perez, who was laying on the ground under a

blanket. The three ran toward Perez. Ammons began hitting him with the sword,

and Daugherty hit him with the bat. Perez started yelling, and the three ran away

and returned to Ammons’ home.




                                       -4-
      Pierre and Perez suffered serious injuries but survived. Gaynor died from

blunt force trauma several hours after the attack, despite being treated in an

emergency room. Gaynor suffered five cracked ribs, as well as skull and facial

fractures, internal bleeding, swelling, and cuts and bruises. His eyes and lips were

swollen, his forehead was cut and bruised, and his nose was broken. The part of

his brain beneath the fractured skull area was crushed and cut in the front.

Gaynor’s face was also extensively fractured above his eyes.

      Daugherty and Hooks were both charged with one count of first-degree

murder and two counts of attempted first-degree murder. The two defendants were

tried together. Ammons pled guilty to third-degree murder and testified at the joint

trial. In addition to an instruction on the charged offense of first-degree murder,

Daugherty’s jury also received instructions on the lesser included offenses of

second-degree murder, third-degree felony murder, manslaughter, and aggravated

battery, respectively.2 The manslaughter instruction contained not only the

required instruction on manslaughter by act, but also a permissive instruction on



       2. On the facts of this case, the jury should not have been allowed to
consider aggravated battery as a non-homicide lesser included offense of first-
degree murder. See Martin v. State, 342 So. 2d 501, 503 (Fla. 1977) (stating that
“we hold that where a homicide has taken place, the proper jury instructions are
restricted to all degrees of murder, manslaughter, and justifiable and excusable
homicide.”), superseded on other grounds by Fla. R. Crim. P. 3.490. While an
instruction on a non-homicide lesser included offense may be permissible where
there is evidence of an intervening cause of death, no such evidence exists here.


                                         -5-
manslaughter by culpable negligence. The instruction on manslaughter by act was

consistent with the instruction later deemed fundamentally erroneous in this

Court’s decision in State v. Montgomery, 39 So. 3d 252 (Fla. 2010).

      On appeal, Daugherty challenged his convictions. With respect to his

conviction for second-degree murder, Daugherty argued that the faulty instruction

on the lesser included offense of manslaughter by act constituted fundamental

error. The parties also disputed whether the jury’s consideration of manslaughter

by culpable negligence remedied the fundamental error caused by the

manslaughter by act instruction.

      The district court declined to conduct a fundamental error analysis. Instead,

the court concluded that a harmless error analysis applied because the lesser

included offense of third-degree felony murder was placed on the verdict form

between second-degree murder and manslaughter. According to the district court,

as a result of the layout of the verdict form, the offense of manslaughter was two

steps removed from the second-degree murder offense of which Daugherty was

convicted. The court explained:

      Even without considering that the jury received the manslaughter by
      culpable negligence instruction, we find that there is an independent
      reason why giving the manslaughter instruction, as a lesser included
      offense of the murder charge, was not fundamental error in this case.
      As our supreme court has explained, “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.” Pena v.

                                        -6-
      State, 901 So. 2d 781, 787 (Fla. 2005). Here, because the jury was
      also instructed on the lesser included offense of third-degree felony
      murder, manslaughter was actually two steps removed from second-
      degree murder under the facts of this case. See Echols v. State, 484
      So. 2d 568, 574 (Fla. 1985) (holding that manslaughter was a lesser
      included offense that was three steps removed from first degree
      murder where the jury, if inclined to exercise its “pardon” power,
      could have returned verdicts of second-degree or third-degree
      murder). If the jury had been inclined to exercise its pardon power, it
      could have returned a verdict of third-degree felony murder, which
      was the next lower crime on the verdict form; the evidence in this case
      would have supported a conviction for third-degree felony murder.
      We conclude that the error in the manslaughter by act instruction was
      harmless and did not constitute fundamental error.

Daugherty, 96 So. 3d at 1078. Thus, the court concluded that Daugherty was not

entitled to relief because the erroneously instructed crime of manslaughter did not

immediately follow the offense of conviction, second-degree murder, on the

verdict form, but was instead preceded by third-degree felony murder.

      The district court affirmed Daugherty’s convictions. However, in light of

the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455

(2012) (holding unconstitutional mandatory sentences of life imprisonment without

parole for juvenile offenders), it reversed Daugherty’s sentence of life

imprisonment for second-degree murder. Additionally, the court certified “conflict

with the contrary decisions of the other districts” regarding the attempted

manslaughter instruction. Because it required the jury to find that the defendant

intended to cause the death of the victim, it contained the same flaw as the

manslaughter by act instruction. Daugherty, 96 So. 3d at 1079. In November

                                        -7-
2012, Daugherty was resentenced to forty years in prison on the second-degree

murder conviction.

                                     ANALYSIS

      Daugherty, who was convicted of second-degree murder, contends that he is

entitled to relief because the jury instruction on the lesser included offense of

manslaughter by act erroneously required that the jury find he intended to kill

Gaynor. Daugherty argues that giving the erroneous instruction on manslaughter

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

fundamental error. In the proceedings below, the district court evaluated the error

caused by the faulty manslaughter by act instruction. However, the court

concluded the instruction did not constitute fundamental error because according to

the layout of the verdict form, manslaughter was not one step removed, but rather,

two steps removed from second-degree murder. Daugherty also asserts that his

convictions for attempted second-degree murder are invalid because the jury

instruction for the lesser included offense of attempted voluntary manslaughter, an

offense one step removed from the offenses of conviction, improperly required the

jury to find that he intended to cause the death of victims Pierre and Perez.

      As we explain below, we disagree with the district court’s analysis of what

constitutes a step removed. We therefore quash the decision of the Fourth District

Court of Appeal and remand for a new trial on the homicide count. We further


                                         -8-
conclude that the instructions on attempted voluntary manslaughter constituted

fundamental error and similarly remand for a new trial on those counts. We first

address Daugherty’s conviction for second-degree murder.

                              Second-Degree Murder

                                State v. Montgomery

      The erroneous manslaughter by act instruction in Daugherty’s case is

consistent with that given in Montgomery, 39 So. 3d 252. In Montgomery, the

defendant was tried for first-degree premeditated murder, but was convicted of

second-degree murder. The jury was instructed on first-degree murder and the

required lesser included offenses of second-degree murder and manslaughter by

act. On the verdict form, the charged offense of first-degree murder was listed

first, followed by second-degree murder, and then manslaughter. Montgomery’s

jury was properly instructed as to both first-degree and second-degree murder.

However, at the time of the trial, the standard jury instruction on manslaughter by

act erroneously required the State to prove that one, the victim was dead, and two,

that the defendant “intentionally caused the death of [the] (victim).” Fla. Std. Jury

Instr. 7.7 (2006). The jury was additionally instructed that: “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.” Montgomery, 39 So. 3d at




                                         -9-
256 (quoting Fla. Std. Jury Instr. 7.7 (2006)). Montgomery did not preserve the

error with an objection at trial.

      Florida’s manslaughter statute, set forth in section 782.07, Florida Statutes

(2005), “does not impose a requirement that the defendant intend to kill the

victim.” Id. at 256. Guided by this statute, this Court concluded:

             Although in some cases of manslaughter by act it may be
      inferred from the facts that the defendant intended to kill the victim, to
      impose such a requirement on a finding of manslaughter by act would
      blur the distinction between first-degree murder and manslaughter.
      Moreover, it would impose a more stringent finding of intent upon
      manslaughter than upon second-degree murder, which, like
      manslaughter, does not require proof that the defendant intended to
      kill the victim. Thus, we conclude that under Florida law, the crime
      of manslaughter by act does not require proof that the defendant
      intended to kill the victim.
Id.
      After clarifying that under Florida law, the crime of manslaughter by act

does not require the intent to kill, this Court evaluated the jury instruction given

and concluded that the language “intentionally caused the death of (victim)”

erroneously required the jury to find intent in order to convict Montgomery of

manslaughter: “We agree with the district court’s observation . . . that a reasonable

jury would believe that in order to convict Montgomery of manslaughter by act, it

had to find that he intended to kill [the victim].” Id. at 257. This Court further

concluded that the additional language “it is not necessary for the State to prove

that the defendant had a premeditated intent to cause death” was “insufficient to



                                         - 10 -
erode the import of the second element: that the jury must find that the defendant

intended to cause the death of the victim.” Id.

      Having concluded that the crime of manslaughter by act did not require the

intent to kill, and that the then-standard jury instruction erroneously required such

a finding, the remaining inquiry in Montgomery was whether the giving of the

erroneous instruction amounted to fundamental error. See id. at 257-58 (“Because

Montgomery did not contemporaneously object to the manslaughter instruction, we

apply a fundamental error analysis here.”). This Court explained that fundamental

error could only occur where the erroneous instruction “was ‘pertinent or material

to what the jury must consider in order to convict.’ ” Id. at 258 (quoting State v.

Delva, 575 So. 2d 643, 645 (Fla. 1991)). This Court further observed that

manslaughter, a next lesser offense of second-degree murder, was one step

removed from second-degree murder, and we evaluated the relationship between

second-degree murder and manslaughter by act as follows: “If the jury is not

properly instructed on the next lower crime, then it is impossible to determine

whether, having been properly instructed, it would have found the defendant guilty

of the next lesser offense.” Id. at 259 (quoting Pena v. State, 901 So. 2d 781, 787

(Fla. 2005)). In sum, Montgomery was convicted of second-degree murder after

the jury was erroneously instructed on the next lesser offense of manslaughter (a

crime one step removed from second-degree murder), and the erroneous instruction


                                        - 11 -
was pertinent and material to what the jury had to consider in order to convict.

Thus, the erroneous instruction constituted fundamental error.3

                       Daugherty’s Manslaughter Instruction

      Like defendant Montgomery, Daugherty was convicted of second-

degree murder after the jury was erroneously instructed on manslaughter by

act. Daugherty’s jury received the following instruction:

             As to Count one in the Indictment, before you can find Thomas
      Daugherty to be guilty of the lesser included crime of manslaughter,
      the State must prove the following elements beyond a reasonable
      doubt. One, Norris Gaynor is dead. Two, Thomas Daugherty
      intentionally caused the death of Norris Gaynor, or the death of Norris
      Gaynor was caused by the culpable negligence of Thomas Daugherty.

                                        ***
             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.

While Montgomery and Daugherty were both convicted of second-degree murder

after the jury was erroneously instructed on the lesser included offense of

manslaughter by act, there is a significant distinction between the two cases. In

Daugherty, in addition to first-degree murder, second-degree murder, and

manslaughter, the jury was also instructed on the lesser included offense of third-


      3. Since this Court issued Montgomery, the standard jury instruction has
been amended to clarify the intent required for a conviction of manslaughter by
act.



                                       - 12 -
degree felony murder. For the district court, this distinction was outcome-

determinative because of the order in which the lesser included offenses were

listed on the verdict form.

      This Court has explained that when drafting a verdict form, “[t]he charged

crime should be followed on the verdict form by the determined lesser included

offenses in descending order by degree of offense.” Sanders v. State, 944 So. 2d

203, 207 (Fla. 2006). Lesser included offenses in Florida are divided into two

categories: category one and category two. Category one lesser included offenses

are required lesser included offenses on which the jury must be instructed.

Second-degree murder (a first-degree felony), and manslaughter by act (a second-

degree felony), are the category one lesser included offenses of first-degree

murder. In addition to the category one, required lesser included offenses of first-

degree murder, there are more than one dozen category two, permissible lesser

included offenses. This Court has explained:

      . . . when the commission of one offense always results in the
      commission of another, the latter offense is a category-one necessarily
      lesser included offense. If the lesser offense has at least one statutory
      element not contained in the greater, it cannot be a category-one
      necessarily lesser included offense. However, such a lesser offense
      may be a category-two permissive lesser included offense if its
      elements are alleged in the accusatory pleading and proven at the trial.




                                        - 13 -
Taylor v. State, 608 So. 2d 804, 805 (Fla. 1992) (citing State v. Weller, 590 So. 2d

923 (Fla. 1991)). Third-degree felony murder is a category two lesser included

offense of first-degree murder.

      In Montgomery, the jury received instructions only on the category one

lesser included offenses. Thus, the verdict form listed, in descending order of

offenses: first-degree murder, then second-degree murder, then manslaughter,

which are each progressively less severe in terms of degree. In Daugherty, while

the jury was instructed on the category one lesser included offenses, the trial court

also instructed the jury on the category two lesser included offense of third-degree

felony murder.

      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-


                                        - 14 -
degree murder, requiring a jury instruction to that effect.” Green v. State, 475 So.

2d 235, 236 (Fla. 1985).

                                One Step Removed

      In determining whether the erroneous manslaughter instruction constituted

fundamental error in Daugherty, the district court’s analysis focused on the order in

which the lesser included offenses were listed on the verdict form. The court

concluded that because the jury was instructed on third-degree felony murder, and

because third-degree felony murder was placed on the verdict form between

second-degree murder and manslaughter, manslaughter was not one step but was,

instead, two steps removed from second-degree murder. Thus, the district court’s

determination of whether a lesser included offense was one step removed from the

offense of conviction was based solely on where the lesser included offense is

listed on the verdict form. Applying this reasoning, had the verdict form listed

second-degree murder, then manslaughter, then third-degree felony murder,

Daugherty would have been entitled to relief. This reasoning cannot stand, as it

would lead to disparate results from case to case.

      We acknowledge that what constitutes a step removed has never been clearly

defined. Historically, the cases that have come before this Court have not required

a determination of what a step removed means. Because these cases involved

lesser included offenses that were each progressively lesser than one another in


                                        - 15 -
terms of severity, their placement on the verdict form was consistent with that

hierarchy. Thus, whether the interpretation of a step removed was based on:

(1) the degree of the lesser included offense relative to the degree of the offense of

conviction, or (2) the location of the lesser included offense on the verdict form

relative to the location of the offense of conviction, the result was the same.

      Here, however, this Court is confronted with a situation where there are

multiple lesser included offenses of the same degree—manslaughter by act and

third-degree felony murder. Thus, we must clarify what constitutes a step removed

in order to evaluate whether Daugherty is entitled to relief. We must decide

whether the fundamental error caused by the erroneous instruction on the lesser

included offense of manslaughter—a next lesser offense of second-degree

murder—can occur only when manslaughter is listed immediately below second-

degree murder on the verdict form.

      Daugherty argues that because third-degree felony murder and manslaughter

are both second-degree felonies, the fact that third-degree murder separated

second-degree murder and manslaughter on his verdict form should not deprive

him of relief. We agree. 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


                                        - 16 -
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.

                     Daugherty’s Case and Fundamental Error

      Jury instructions are subject to the contemporaneous objection rule. In the

absence of an objection at trial, a challenge can be raised on appeal only if

fundamental error occurred. See Delva, 575 So. 2d at 644. When evaluating

fundamental error, there is a difference “between a disputed element of a crime and

an element of a crime about which there is no dispute in the case.” Reed v. State,

837 So. 2d 366, 369 (Fla. 2002). “In other words, ‘fundamental error occurs only


                                        - 17 -
when the omission is pertinent or material to what the jury must consider in order

to convict.’ ” Id. at 370 (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla.

1982)).

       In the present case, where Daugherty was indicted and tried for first-degree

murder and convicted of second-degree murder, we conclude that the issue of

intent was pertinent or material to what the jury had to consider in order to convict.

The problem with the manslaughter instruction was that it erroneously required a

finding of intent. Indeed, “[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.”

Griffin v. State, 160 So. 3d 63, 68 (Fla. 2015).

       “As we have explained, where the erroneous instruction pertains to an

element that is material to the jury’s deliberation and is in dispute, fundamental

error occurs, as our precedent indicates, if that offense is one step removed from

the crime for which the defendant is convicted.” Haygood, 109 So. 3d at 742

(emphasis added). “The result of incorrectly instructing on a necessarily lesser

included offense . . . is that the jury is deprived of all the tools it needs to reach a

proper verdict in the case before it.” Id. at 743. Thus, fundamental error occurred

where Daugherty was convicted of second-degree murder, intent was an issue at

trial, and the instruction on manslaughter by act, an offense one step removed from


                                          - 18 -
second-degree murder, was pertinent or material to what the jury had to consider to

convict.

      What remains to be determined is whether the fundamental error caused by

the faulty manslaughter by act instruction was cured by the giving of either the

third-degree felony murder instruction or the culpable negligence instruction.

These offenses—like manslaughter by act—are one step removed from second-

degree murder. We conclude that in this case, where the record does not support a

finding of culpable negligence, and the jury instruction on third-degree felony

murder prevented the jury from a full and accurate consideration of that offense, it

was not cured.

                      Manslaughter by Culpable Negligence

      “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.

      The culpable negligence instruction provided that in failing to act reasonably

towards others, Daugherty must have been without any conscious intention to

harm. Although Daugherty challenged whether he intended to kill Norris Gaynor,

no reasonable jury could conclude that Daugherty lacked a conscious intention to


                                       - 19 -
harm when he hit Gaynor with a baseball bat. Daugherty’s intentional conduct of

seeking a victim to attack with a baseball bat belies the very concept of negligence.

Thus, the evidence in Daugherty’s case does not support a finding of manslaughter

by culpable negligence. It does, however, support a finding of manslaughter by

act—that Daugherty intended to commit an act that caused Gaynor’s death—which

further underscores the harm caused by the erroneous manslaughter by act

instruction.

                           Third-Degree Felony Murder

      Moreover, given the circumstances of this case, the wording of the third-

degree felony murder instruction would have prevented the jury from convicting

Daugherty of third-degree felony murder. Consequently, the giving of the

instruction did not remedy the fundamental error caused by the faulty manslaughter

by act instruction.

      Daugherty’s jury was instructed on third-degree felony murder, with

aggravated battery as the underlying felony. Third-degree felony murder is a

“catch-all” felony murder crime, in that it may be based on any felony other than

those enumerated in section 782.04, Florida Statutes. Aggravated battery is not

one of the enumerated felonies, and as such, may form a basis for a conviction of

third-degree felony murder.




                                       - 20 -
      While it appears that the jury could have reasonably found beyond a

reasonable doubt that the facts supported the underlying felony of aggravated

battery, the wording of the then-standard jury instruction on third-degree felony

murder, “the death occurred as a consequen[ce] of and while Thomas Daugherty

was engaged in the commission of aggravated battery” would have prevented the

jury from so finding based on the evidence presented. Given this instruction, a

jury could reasonably conclude that Daugherty could only be guilty of third-degree

felony murder if Gaynor died during the attack. Gaynor did not die until hours

after the attack and after seeking medical attention. Thus, the wording of this

instruction would have prevented the jury from convicting Daugherty of third-

degree felony murder. In fact, the standard jury instruction on third-degree felony

murder was revised in 2014 in a manner that rectified this very concern and more

accurately captured the State’s burden of proof. The current instruction now reads:

“While engaged in the commission of a[n] (felony alleged), [(defendant)]

[(defendant’s accomplice)] caused the death of (victim).” In re Std. Jury Inst. in

Crim. Cases—Report No. 2013-03, 146 So. 3d 1110 (Fla. 2014); Fla. Std. Jury

Instr. (Crim.) 7.6 (2014).

      Because the evidence would have supported a conviction of the properly

instructed offense of manslaughter by act, the record does not support a conviction

of manslaughter by culpable negligence, and the wording of the third-degree


                                       - 21 -
felony murder instruction prevented a full and accurate consideration of that lesser

included offense, the jury was deprived of the tools necessary to reach a proper

verdict on the homicide count. Daugherty is entitled to a new trial for the

homicide of Norris Gaynor. We now turn to Daugherty’s convictions for

attempted second-degree murder.

                        Attempted Second-Degree Murder

      Daugherty was tried for two counts of attempted first-degree murder and

was convicted of attempted second-degree murder on both counts after the jury

was erroneously instructed on the lesser included offense of attempted voluntary

manslaughter. Daugherty’s intent was in dispute. The jury instruction was

consistent with the language that this Court deemed erroneous in Williams v. State,

123 So. 3d 23 (Fla. 2013). In Williams, this Court held that the attempted

voluntary manslaughter instruction, which also required the jury to find that the

defendant intended to cause the death of the victim, constituted fundamental error

where it was one step removed from the offense of conviction, and intent was

disputed at trial. Id. at 30.4 The State argues that Daugherty is not entitled to relief

because the jury was also instructed on the lesser included offense of aggravated


       4. The standard jury instruction on attempted voluntary manslaughter was
amended to remove the faulty intent language. Moreover, because the
manslaughter statute does not define manslaughter as voluntary/involuntary, the
jury instruction was renamed “attempted manslaughter by act.” See In re Amends.
to Std. Jury Instrs. in Crim. Cases—Instr. 6.6, 132 So. 3d 1124 (Fla. 2014).

                                         - 22 -
battery. We disagree. “Simply stated, the defendant is entitled to an accurate

instruction on the charged offenses and all lesser included offenses, and when the

defendant is convicted of a crime not more than one step removed from the crime

for which an erroneous instruction is given, fundamental error occurs if the

instruction pertains to a disputed element of the crime.” Id. at 29. Daugherty is

entitled to a new trial on these counts.

                                   CONCLUSION

      Fundamental error occurred as to each count charged in this case.

Accordingly, we quash the decision in Daugherty and remand to the district court

with instructions that Daugherty be granted a new trial on all counts.

      It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., and PERRY, Senior Justice, concur.
POLSTON, J., dissents with an opinion, in which CANADY, J., concurs.

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

POLSTON, J., dissenting.

      Because I do not believe fundamental error occurred, I would approve the

Fourth District’s decision. See Haygood v. State, 109 So. 3d 735, 746-52 (Fla.

2013) (Canady, J., dissenting).

CANADY, J., concurs.




                                           - 23 -
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Fourth District - Case No. 4D08-4624

      (Broward County)

Donna Duncan and Steven Lauren Seliger of Sanders and Duncan, P.A.,
Apalachicola, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Consiglia Terenzio,
Bureau Chief, and Jeanine Marie Germanowicz, Assistant Attorney General, West
Palm Beach, Florida; and Kristen Lynn Davenport, Assistant Attorney General,
Daytona Beach, Florida,

      for Respondent




                                      - 24 -
