Valdes-Pino v. State , 23 So. 3d 871 ( 2009 )

23 So.3d 871 (2009)

John VALDES-PINO, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D08-1417.

District Court of Appeal of Florida, Third District.

December 23, 2009.

Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

Before WELLS, ROTHENBERG, and SALTER, JJ.

PER CURIAM.

John Valdes-Pino appeals his conviction for second-degree murder asserting fundamental error in the manslaughter instruction given to the jury.^[1] We affirm the conviction.

On the record presented, we find that the then-standard instructions given by the trial court (without objection) did not constitute fundamental error. Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009). However, because the contrary analysis in Montgomery v. State, ___ So.3d ___, 2009 WL 350624 (Fla. 1st DCA 2009), is currently pending review before the Florida Supreme Court,^[2] we certify decisional conflict with that First District opinion.

Affirmed. Direct conflict certified.

NOTES

[1] The defendant's remaining point lacks merit.

[2] State v. Montgomery, 11 So.3d 943 (Fla. 2009); oral argument was heard October 7, 2009.