RIESEL v. STATE, 48 So.3d 885 (Fla.App. 1 Dist. 2010)

No. 1D09-3177.District Court of Appeal of Florida, First District.
October 15, 2010. Rehearing Denied November 30, 2010.

Appeal from the Circuit Court, Okaloosa County, Thomas T. Remington, J.

Page 886

Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Randy Riesel appeals his conviction for second-degree murder and his sentence to life in prison. He was convicted as charged, after the trial court instructed the jury on the lesser included offense of manslaughter by act as follows: “To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt: Number one, Charles David May, Jr., is dead. Number two, Randy Scott Riesel intentionally caused the death of Charles David May, Jr.” Later on the instruction also stated: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had premeditated intent to cause death, only an intent to commit and (sic) act which caused death.”[1] The jury was not instructed on manslaughter by culpable negligence. Cf. Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010); Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010).

The manslaughter instruction in the present case is not materially different from the instruction held to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla. 2010), because it, too, erroneously stated that intent to kill was an element of manslaughter. Montgomery, 39 So.3d at 256, 259 (manslaughter by act instruction which provided that the state must prove the defendant “intentionally caused the death of the victim resulted in fundamental error because the “instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill” the victim).[2] See also Hardee v. State, ___ So.3d (Fla. 1st DCA 2009); Ward v. State, 12 So.3d 920 (Fla. 1st DCA 2009); Stinson v. State, ___ So.3d ___, (Fla. 1st DCA 2009). See generally Reddick v. State, 394 So.2d 417, 418 (Fla. 1981) (“The failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.”).

Page 887

We reverse the conviction for second-degree murder and remand for a new trial.[3]

Reversed and remanded.

BENTON, THOMAS, and ROWE, JJ., concur.