Third District Court of Appeal
State of Florida
Opinion filed February 17, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1821
Lower Tribunal No. 04-13073
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Jose Cisneros-Gonzalez,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.
Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
ON CONFESSION OF ERROR
LOGUE, J.
A jury convicted Jose Cisneros-Gonzalez of kidnapping, sexual battery, and
attempted second-degree murder. He raises two issues on appeal: (1) whether the
trial court failed to conduct an adequate Nelson1 hearing; and (2) whether the trial
court fundamentally erred when it instructed the jurors that intent to kill was an
element of attempted voluntary manslaughter.
Finding no error on the first issue, we affirm Cisneros-Gonzalez’s
convictions of sexual battery and kidnapping. However, based on the State’s
proper confession of error pursuant to Griffin v. State, 160 So. 3d 63 (Fla. 2015),
we reverse and remand for a new trial on the attempted second-degree murder
conviction. Like the defendant in Griffin, the defendant here was convicted of a
crime one step removed from the erroneous manslaughter instruction, and he did
not concede the issue of intent.
Affirmed in part; reversed in part; and remanded for a new trial on the
attempted second-degree murder charge.
1 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
2