18 So. 3d 600 | Fla. Dist. Ct. App. | 2009
Benjamin WASHINGTON, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
*601 Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The defendant appeals his conviction, arguing that the trial court committed fundamental error by giving a jury instruction for manslaughter by act that required the state to prove that the defendant "intentionally caused the death" of the victim. Based on this court's recent decision in Montgomery v. State, 34 Fla. L. Weekly D360, ___ So.3d ___, 2009 WL 350624 (Fla. 1st DCA Feb. 12, 2009) (question certified; conflict certified), we reverse the defendant's conviction.
In Montgomery, we held that manslaughter by act requires only an intentional unlawful act, rather than an intent to kill, and that the standard jury instruction improperly imposed an additional element for the crime of manslaughter. See id. at ____, 34 Fla. L. Weekly at D362. In the instant appeal, the trial court gave the standard jury instruction for the lesser included offense of manslaughter by act, which improperly imposed the additional element of intent to kill. The instruction as provided would likely result in a misinterpretation by an average juror; therefore, this case is reversed and remanded for a new trial.
REVERSED AND REMANDED.
DAVIS, BENTON, and PADOVANO, JJ., concur.