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 2009-11

Nieves v. State , 22 So. 3d 691 ( 2009 )


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  • 22 So.3d 691 (2009)

    Angel Manuel NIEVES, Appellant,
    v.
    STATE of Florida, Appellee.

    No. 2D08-3809.

    District Court of Appeal of Florida, Second District.

    November 6, 2009.

    *692 Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.

    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

    KHOUZAM, Judge.

    Angel Manuel Nieves appeals his judgment and sentence for second-degree murder. Nieves contends that the trial court committed fundamental error when it instructed the jury on the lesser-included offense of manslaughter by act because the standard instruction in effect at the time of and given at his trial improperly imposed the additional element of "intent to kill" to that offense.[1] In support of his contention, Nieves relies on Montgomery v. State, ___ So.3d ___ (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009), in which the First District determined that the trial court fundamentally erred in giving the standard instruction on manslaughter by act in effect at the time of Montgomery's trial, which was virtually identical to the instruction given at Nieves' trial. This court, however, recently held that the instruction was not fundamentally erroneous. See Zeigler v. State, 18 So.3d 1239, 1245-46 (Fla. 2d DCA 2009). Furthermore, unlike Montgomery and Zeigler, the jury in Nieves' case was also instructed on the lesser-included offense of manslaughter by culpable negligence.

    Accordingly, we affirm Nieves' conviction and sentence, and as we did in Zeigler, we certify conflict with Montgomery.

    Judgment and sentence affirmed; conflict certified.

    WALLACE and MORRIS, JJ., Concur.

    NOTES

    [1] The instruction given in Nieves' case is no longer the standard instruction for manslaughter by act. The instruction, which was modified by the supreme court in December 2008, now reads: "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, only an intent to commit an act which caused death." In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008).