IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MICHAEL JOE MCCOY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-5914
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed June 21, 2016.
An appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.
Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant Michael J. McCoy was charged with the second-degree murder of
a man with whom he believed his wife was having an affair and of the attempted
second-degree murder of the wife. A jury found him guilty of the lesser-included
offenses of manslaughter and aggravated battery with a firearm. On appeal, he
challenges his judgment and sentence for aggravated battery with a firearm,
alleging that the jury instructions and verdict form were fundamentally erroneous
because the aggravated battery was listed after the attempted manslaughter option.
He avers that lesser offenses must be listed on a verdict form in descending order
by degree of offense; because aggravated battery is a second-degree felony (which
carries a maximum sentence of fifteen years in prison but was enhanced here by
the 10-20-Life statute to a minimum mandatory penalty of twenty-five years in
prison), it should have been listed before the attempted manslaughter offense,
which is a third-degree felony (carrying a maximum of five years in prison).
An error in the trial court’s listing of lesser-included offenses on a verdict
form and in jury instructions is not fundamental error in this district. See Graham
v. State, 100 So. 3d 755 (Fla. 1st DCA 2012). For that reason, McCoy urges this
Court to certify conflict between Graham and the Fifth District’s decision in
Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012). In Thomas, the defendant
was convicted of aggravated battery, but the Fifth District reversed the conviction
and sentence. It remanded the case for a new trial, holding that “the trial court
fundamentally erred” in the way it listed the lesser-included offenses because “the
jury could reasonably have concluded that the offenses were presented in
descending order of seriousness and that attempted voluntary manslaughter was
less serious than aggravated battery. As such, it is impossible to determine whether
the jury, if given the opportunity, would have ‘pardoned’ the defendant by
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convicting him of attempted voluntary manslaughter under a proper instruction.”
Id. at 881-82. Because the jury was accurately instructed and the evidence supports
McCoy’s convictions obtained, we affirm the judgment and sentence at issue, but
certify conflict with Thomas v. State, 91 So. 3d 880 (Fla. 5th DCA 2012).
AFFIRMED.
LEWIS, B.L. THOMAS, and MAKAR, JJ., CONCUR.
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