Gordon v. State, 126 So. 3d 292

Gordon and Pfeifer argued; Gordon hit Pfeifer with a belt and hand, causing bruises but no lasting injury.
Pfeifer asked Gordon to move out; he refused, then returned with a rifle and shot her in the groin and hip, breaking her leg.
Gordon was charged with attempted first-degree murder (Count One) and aggravated battery by great bodily harm (Count Two).
At trial, the court instructed on attempted first-degree murder and lesser included offenses, including attempted second-degree murder and attempted voluntary manslaughter.
The trial court gave a standard attempted voluntary manslaughter instruction that required intent to kill, which Gordon challenged as fundamental error.
The court found evidence insufficient for aggravated battery by great bodily harm; defense counsel failed to move for judgment of acquittal on that element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fundamental error from the manslaughter instruction	Gordon	Gordon	Reverse Count One; remand for new trial
Sufficiency/ineffectiveness on aggravated battery by great bodily harm	Gordon	Gordon	Reverse Count Two; remand to enter simple battery and resentencing
Whether lack of excusable/justifiable homicide instruction constitutes fundamental error	Gordon	Gordon	Not decided; no fundamental-error ruling reached

Montgomery v. State, 39 So.3d 252 (Fla.2010) (standard attempted voluntary manslaughter instruction requiring intent to kill; fundamental error)
Bass v. State, 45 So.3d 970 (Fla.3d DCA 2010) (relevance to lesser-included offenses and instructions)
Coiscou v. State, 43 So.3d 123 (Fla.3d DCA 2010) (instructional error regarding attempted voluntary manslaughter)
Burrows v. State, 62 So.3d 1258 (Fla.3d DCA 2011) (direct conflict considerations on instructional error)
Hicks v. State, 41 So.3d 327 (Fla.2d DCA 2010) (ineffective assistance on face of record for judgment of acquittal)
Jaimes v. State, 51 So.3d 445 (Fla.2010) (remand to enter judgment on lesser included offense where supported)