       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 27, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D10-27
                         Lower Tribunal No. 06-44071
                             ________________

                             Anthony Figueroa,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Daryl E.
Trawick, Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for appellee.

Before WELLS, LAGOA, and FERNANDEZ, JJ.

        ON REMAND FROM THE SUPREME COURT OF FLORIDA

      PER CURIAM.
       Upon remand by the Florida Supreme Court, we reverse Anthony

Figueroa’s (“Figueroa”) conviction and sentence for second degree murder and

remand for a new trial.

      The sole issue on appeal arises from the jury instructions given by the trial

court for manslaughter, which was the 2008 interim manslaughter by act

instruction approved by the Florida Supreme Court. See In re Standard Jury

Instructions in Criminal Cases—Report No. 2007-10, 997 So. 2d 403 (Fla. 2008).

The question before us is whether that instruction erroneously stated the elements

of manslaughter by act, and whether the instruction constitutes fundamental error

in the instant case. See Daniels v. State, 121 So. 3d 409 (Fla. 2013); State v.

Montgomery, 39 So. 3d 252 (Fla. 2010).

      Pursuant to Figueroa’s Motion for Rehearing, we withdrew our opinion

issued June 25, 2014, and stayed our decision pending disposition of Griffin v.

State, 160 So. 3d 63 (Fla. 2015). Subsequently, in Griffin, the Florida Supreme

Court clarified that the giving of an erroneous manslaughter by act jury instruction

does establish fundamental error when the defendant’s sole defense is

misidentification.   Because the defendant in Griffin was convicted of second

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

the defendant did not concede the intent by which the homicide was committed,

the Court concluded that proof of that issue remained on the State, and remained in

dispute notwithstanding the defendant’s defense of misidentification. Id. at 70.

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Thus, it was fundamental error to erroneously instruct the jury on manslaughter by

act, requiring a new trial. Id.

      In accordance with Griffin, 160 So. 3d 63, we hold that the error here was

fundamental, as Figueroa did not concede the element of intent and he had no

affirmative obligation to dispute intent or any element of the crime. Id.; Page v.

State, 40 Fla. L. Weekly D1077 (Fla. 3d DCA May 6, 2015); Moore v. State, 40

Fla. L. Weekly D1075 (Fla. 3d DCA May 6, 2015).            Because we find that

fundamental error occurred, we reverse and remand for a new trial.

      REVERSED AND REMANDED




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