Burton v. State
2011 Fla. App. LEXIS 4889
Fla. Dist. Ct. App.2011Background
- Burton was convicted of attempted second-degree murder, aggravated assault, and shooting at or into a vehicle.
- Burton challenged the trial court's un-objected use of Standard Jury Instruction (Criminal) 6.6 for the lesser-included offense of attempted voluntary manslaughter by act.
- The Supreme Court decision in Montgomery v. State found the manslaughter-by-act instruction fundamentally erroneous because it required intent to kill, which is not an element of manslaughter by act.
- Lower courts diverged on whether the same flaw applies to the instruction for attempted manslaughter by act; Lamb and Rushing aligned with Montgomery, while Williams took the opposite view.
- The court held the manslaughter-by-act instruction used here was fundamental error and reversed Burton’s attempted second-degree murder conviction, remanding for a new trial on that charge, and affirmed the other convictions.
- The court certified direct conflict with Williams and noted the error is not subject to harmless error review because the offense is one step removed from the charged crime.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the attempted manslaughter by act instruction fundamentally erroneous? | Burton contends the instruction improperly required intent to kill. | State argues the standard instruction is correct and not fundamentally flawed. | Yes; instruction required intent to kill and thus fundamental error. |
| Should Burton receive a new trial on the attempted second-degree murder charge? | Burton seeks reversal and remand for new trial on the charge. | State emphasizes the conviction on attempted second-degree murder should stand if the error was harmless. | Remand for a new trial on the attempted second-degree murder charge. |
| Is there a direct conflict with Williams and should the conflict be certified? | Burton argues the conflict requires correction and a new trial on the lesser offense. | State does not dispute the potential conflict but urges appropriate remedy within the record. | Direct conflict with Williams certified. |
| Is the error subject to harmless-error analysis given its one-step removal from the charged offense? | Burton argues error could impact verdict and is not harmless. | State contends the error is not subject to harmless-error analysis due to its proximity to the charged crime. | Not subject to harmless-error analysis; fundamental error. |
Key Cases Cited
- Montgomery v. State, 39 So.3d 252 (Fla.2010) (held that manslaughter by act instruction is fundamentally erroneous for requiring intent to kill)
- Lamb v. State, 18 So.3d 734 (Fla.1st DCA 2009) (held that the attempted manslaughter instruction suffers from same infirmities as Montgomery)
- Rushing v. State, So.3d - (Fla.1st DCA 2010) (held that standard instruction for attempted voluntary manslaughter shares Montgomery infirmities)
- Williams v. State, 40 So.3d 72 (Fla.4th DCA 2010) (certified conflict with Lamb regarding manslaughter instruction)
- Pena v. State, 901 So.2d 781 (Fla.2005) (per se reversible error concept for certain unpreserved instructional errors)
- Sanders v. State, 946 So.2d 953 (Fla.2007) (discussed jury pardons and prejudice in the context of verdicts contrary to law)
- Reddick v. State, 394 So.2d 417 (Fla.1981) (per se reversible error for failure to instruct on a lesser included offense one step removed)
- Johnson v. State, 53 So.3d 1003 (Fla.2010) (explained concept of per se reversible error in this context)
- Hill v. State, 788 So.2d 315 (Fla.1st DCA 2001) (quoted regarding jury pardons and prejudice arguments)