3RD DCA ROUNDUP -MURDER MOST FOUL EDITION

We start our 3rd DCA roundup with a case that has a conundrum: What do you do when the jury instruction for a lesser has a higher standard of proof then the jury instruction for the charged crime? If you're the 3rd, you wince and certify a conflict.

Leggett v. State: Here's the problem: the jury instruction for second degree murder does not require the state to prove the defendant had the intent to cause the death of the deceased. In this case the jury was also instructed on lesser included crime- intentional manslaughter. That instruction requires the jury that before they can find the defendant guilty the state must have proven that the defendant had a premeditated intent to cause the death of the deceased.

Quite the conundrum.

The second DCA in Zeigler v. State, 18 So. 3d 1239 (Fla. 2d DCA 2009) which the 3rd has followed has held that this is not error. The 3rd has followed that decision. See, Valdes-Pino v. State, 23 So. 3d 871 (Fla. 3d DCA 2009), and Bonilla v. State, 23 So. 3d 1256 (Fla. 3d DCA 2009).

The 1st DCA has held this instruction is fundamental error: Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009), review granted, 11 So. 3d 943 (Fla. 2009).

What you need to know and do: Object object object to the manslaughter instruction and preserve the error.

AND THE HITS JUST KEEP ON COMING:

BROWEIRD UPDATE: Take our new quiz:

County Court criminal administrative Judge Joel Lazarus has

a) resigned as administrative judge;

b) been accepted on dancing with the stars;

c) entered the world series of poker.

Answer: Hint- we have no idea if he can dance or play cards.

So chalk up two administrative judges North of the Border resigning this week. Chief Judge Tricky Vic Tobin is losing administrators faster than embattled NY Governor David Patterson.

And not to brag but here in Dade, we saw the resignation of our chief administrative judge for the criminal courts and the election of a replacement with nary a mention of scandal or bad blood.

Remember when the folks in Broward use to sneer at us for having a court system that was an unprincipled mess? To hear them tell it, they treated misdemeanor cases more seriously than Dade treated homicide cases.

Who's laughing now?