Davis v. State

• Decision Date: 16 April 2014
• Docket Number: No. 4D09–3260.,4D09–3260.
• Citation: 138 So.3d 489
• Parties: Kawuan L. DAVIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

138 So.3d 489

Kawuan L. DAVIS, Appellant,

v.STATE of Florida, Appellee.

No. 4D09–3260.

District Court of Appeal of Florida, Fourth District.

April 16, 2014.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 502008CF007861A.

Antony P. Ryan, Regional Counsel, and Randall Berman and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

We grant appellant's motion for rehearing and clarification of this court's February 26, 2014 opinion. We substitute the following opinion.

The defendant appealed from a conviction and sentence for attempted second degree murder with a firearm as a lesser included offense of attempted first degree murder with a firearm. This court affirmed. Davis v. State, 69 So.3d 1021, 1022 (Fla. 4th DCA 2011). Our affirmance was based on our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“ Williams I ”). Williams I held that the giving of the standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder. Id. at 74–75.

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court quashed this court's opinion in Williams I. Williams v. State, 123 So.3d 23, 30 (Fla.2013) ( “ Williams II ”). The Court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

Id. at 27. The Court then, by order, accepted jurisdiction of this case, quashed this court's opinion in this case, and remanded for reconsideration upon applicationof its opinion in Williams II. Davis v. State, 134 So.3d 446 (Fla.2014).

In light of Williams II, we hold that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act. We reverse and remand for a new trial on the charge of attempted second degree murder with a firearm. The trial court...