PHARISIEN v. State
2011 Fla. App. LEXIS 18113
Fla. Dist. Ct. App.2011Background
- Pharisien was charged with second-degree murder with a firearm and attempted second-degree murder with a firearm following a July 13, 2007 nightclub shooting.
- At trial, defense asked the court not to instruct on lesser-included offenses; the court did not grant aggravated battery but did give a manslaughter by act instruction.
- The manslaughter by act instruction stated that to prove manslaughter, the State must prove death and an intentional act by Pharisien, and that intent to kill was not required, only intent to commit an act causing death.
- The trial court’s instruction differed from the pre- Montgomery standard by adding language clarifying the intent element.
- Florida Supreme Court later held the Montgomery-era instruction erroneous for requiring intent to kill; this case preserves the amended instruction as clarified and affirms the conviction.
- Pharisien also challenged the denial of his motion for judgment of acquittal, which the court affirmed without comment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the manslaughter by act instruction fundamentally erroneous? | Pharisien argued the instruction required intent to kill. | State contends the amended instruction clarifies only the act-intent element, not kill intent. | No fundamental error; instruction sufficiently clarified intent. |
| Does the amended instruction eliminate the intent-to-kill requirement? | Pharisien asserts amended language still implies intent to kill. | State asserts clarified language shows intent to commit an act causing death, not intent to kill. | Amended instruction does not require intent to kill. |
| Should this case conflict with First District rulings on the instruction? | Pharisien argues conflict with First District decisions finding error. | State relies on Third District Moore and similar rulings upholding the amended instruction. | Conflict certified with First District decisions. |
| Was there error in denying judgment of acquittal? | Pharisien contends insufficient evidence. | State defends sufficiency of evidence. | Judgment of acquittal affirmed without comment. |
Key Cases Cited
- State v. Montgomery, 39 So.3d 252 (Fla. 2010) (held amended manslaughter by act instruction was fundamental error for requiring intent to kill)
- Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010) (amended instruction still implied kill-intent interest, deemed fundamental error)
- Moore v. State, 57 So.3d 240 (Fla. 3d DCA 2011) (amended instruction not fundamentally erroneous due to clarified intent element)
- Noack v. State, 61 So.3d 1208 (Fla. 1st DCA 2011) (follows Riesel on amended instruction issue)
- Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010) (amended instruction cited in conflict with Montgomery line)
- Williams v. State, 50 So.3d 1207 (Fla. 1st DCA 2010) (continued analysis of amended manslaughter instruction)
- Daniels v. State, 72 So.3d 227 (Fla. 2011) (addressed same issue in related context)