Michael HORNE, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D09-4476.
District Court of Appeal of Florida, First District.
December 8, 2009.Michael Horne, pro se, Petitioner.
Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Respondent.
PER CURIAM.
Petitioner argues that he received ineffective assistance of appellate counsel on direct appeal of his judgment and sentence for attempted second-degree murder in the Circuit Court for Leon County. After briefing was complete in his appeal, but before this court issued its opinion, this court held that giving of the standard jury instruction on manslaughter in a case of this nature was fundamental error. Montgomery v. State, ___ So.3d ___, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So. 3d 943 (Fla.2009). This case is indistinguishable from that of Toby v. State, ___ So.3d ___, 2009 WL 3232116 (Fla. 1st DCA 2009). We therefore grant the petition, reverse the conviction, and remand to the trial court for further proceedings. We certify the same question of great public importance that was certified in Montgomery and Toby:
IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?
PETITION GRANTED.
KAHN, LEWIS, and WETHERELL, JJ., concur.