Berube v. State, 149 So. 3d 1165

Defendant Leo Richard Berube was tried twice for the 2003 strangulation death of a woman; first trial resulted in reversal (Williams evidence error), second trial resulted in conviction for second-degree murder and life sentence.
At the second trial the jury was given an erroneous manslaughter-by-act jury instruction that stated the State must prove the defendant intentionally caused the victim’s death.
Berube argued on appeal that the erroneous manslaughter-by-act instruction was fundamental error because it misstated the intent element of the next-lesser offense.
The Florida Supreme Court vacated and remanded for reconsideration in light of Daniels v. State; the district court reconsidered whether the error was harmful under the Reed framework.
The court held that intent was not a disputed element in this case (Berube consistently conceded the physical facts and argued somebody else killed the victim) and that the erroneous instruction therefore was not harmful; judgment and sentence were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether erroneous manslaughter-by-act instruction constituted fundamental error	Berube: instruction misstated intent element for manslaughter and so is fundamental error entitling him to a new trial	State: any error was harmless because intent was not disputed and evidence supported intent to cause death	Held: No fundamental error — defendant failed to show the error was harmful because intent was not a disputed element
Whether a next-lesser-offense instruction error is per se reversible or requires harmfulness showing	Berube: relied on Daniels/Montgomery dicta suggesting per se rule for next-lesser errors	State: Reed requires defendant to show reasonable probability of prejudice before declaring error fundamental	Held: Court applies Reed — defendant must prove harmfulness (reasonable probability); next-lesser status does not create automatic reversal

Daniels v. State, 121 So.3d 409 (Fla. 2013) (defective instruction is fundamental only if it pertains to a material element disputed at trial)
Reed v. State, 837 So.2d 366 (Fla. 2002) (defendant must first show an unpreserved error was harmful before a court decides if it is fundamental)
Pena v. State, 901 So.2d 781 (Fla. 2005) (discusses harmless-error analysis for lesser-degree instructions; contains dicta regarding steps-removed rule)
State v. Abreau, 363 So.2d 1063 (Fla. 1978) (holding that failure to instruct on the next immediate lesser-included offense was per se reversible in preserved-error context)
Berube v. State, 5 So.3d 734 (Fla. 2d DCA 2009) (Berube I) (detailing facts and reversing first conviction due to improper Williams evidence)
Montgomery v. State, 39 So.3d 252 (Fla. 2010) (discusses next-lesser instruction errors and was relied on in Daniels)
Haygood v. State, 109 So.3d 735 (Fla. 2013) (distinguishes manslaughter-by-act vs. culpable-negligence instructions where intent was disputed)