Third District Court of Appeal
State of Florida
Opinion filed May 06, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D09-958
Lower Tribunal No. 03-25149
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Baron Moore,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Julio E.
Jimenez, Judge.
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant
Attorney General, for appellee.
Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
ON REMAND
ROTHENBERG, J.
Upon remand by the Florida Supreme Court, we reverse Baron Moore’s
conviction and sentence for second degree murder and remand for a new trial.
In State v. Montgomery, 39 So. 3d 252 (Fla. 2010), the Florida Supreme
Court found that the standard jury instruction for manslaughter by act was
erroneous and that the erroneous instruction was fundamental error where
Montgomery was convicted of second-degree murder, which is only one step
removed from manslaughter. Id. at 258. In Haygood v. State, 109 So. 3d 735 (Fla.
2013), the Florida Supreme Court addressed whether the trial court’s fundamental
error in giving the erroneous jury instruction was cured by also giving an
instruction on manslaughter by culpable negligence. The Court concluded that the
erroneous instruction was not cured by giving a culpable negligence instruction if
the evidence supports manslaughter by act, the evidence does not support
manslaughter by culpable negligence, and where the defendant is convicted of
second-degree murder. Haygood, 109 So. 3d at 737.
Thereafter, in Daniels v. State, 121 So. 3d 409 (Fla. 2013), the Florida
Supreme Court concluded that, although the manslaughter by act instruction in
Daniels differed from the manslaughter by act instruction found to be erroneous
and fundamental error in Montgomery, and the Daniels instruction was
preliminarily approved by the Florida Supreme Court post-Montgomery, it
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suffered the same infirmity as the Montgomery instruction, and must suffer the
same fate as the erroneous Montgomery instruction. Daniels, 121 So. 3d at 419.
Lastly, in Griffin v. State, 40 Fla. L. Weekly S135, S136-37 (Fla. Mar. 12,
2015), the Florida Supreme Court specifically rejected the State’s argument that
the Court’s holdings in Montgomery, Daniels, and Haygood do not apply where
the defendant’s sole defense at trial was misidentification. In Griffin, the State
contended, and the Second District Court of Appeal concluded, that because
misidentification was Griffin’s sole defense at trial, the element of intent was not
in dispute and because “fundamental error in a jury instruction only occurs where
the instruction pertains to a disputed element of the offense and the error is
pertinent or material to what the jury must consider to convict,” no fundamental
error had occurred. Griffin v. State, 128 So. 3d 88, 89 (Fla. 2d DCA 2013)
(citations omitted). In rejecting this argument and quashing the Second District’s
opinion, the Florida Supreme Court noted that Griffin did not concede the element
of intent and he had no affirmative obligation to dispute intent or any element of
the crime. Griffin, 40 Fla. L. Weekly at S137. A defendant may sit mute as it is
the State’s burden to prove all of the elements. Id. The fact that a defendant
contests one of the elements at trial does not mean he has conceded the remaining
elements the State must prove. Id.
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Based on these holdings, we reverse Moore’s conviction and sentence for
second-degree murder and remand for a new trial because Moore’s jury was
provided with the same “infirm” manslaughter by act instruction addressed in
Daniels, which the Florida Supreme Court has determined constitutes fundamental
error; the evidence supports manslaughter by act and it does not support culpable
negligence; Moore did not concede that he intended to kill the victim; and Moore
was convicted of second-degree murder.
Reversed and remanded.
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