3Rd DCA ROUNDUP -FLORIDA SUPREME COURT EDITION

BREAKING NEWS: Dolphins trade Ted Ginn to 49ers for a late round pick next year. We think this is a mistake because Ginn was a superb special teams player and could have been used this year while the Dolphins groomed another player to take his place. Goodbye Ted. We hardly knew ya.

You know it; you love it; you wait all week for it.

The 3rd DCA Roundup: Having found no cases that we deemed interesting or "blog worthy" in the last few weeks, we skipped over to the Florida Supreme Court's website and found an interesting opinion on intent and manslaughter.

But before we get to that, we were having dinner at our all time favourite restaurant this past weekend, Raos- in Manhattan- and don't even think about trying to get in- you can't. Anyway, the topic of discussion was "why do we drive on a parkway and park in a driveway" and "why do they call them apartments when in fact the units are all jammed in together?" There's a lot of drinking at Raos.

State v. Montgomery: Does the prosecution need to prove intent to prove manslaughter? The Florida Supreme Court says: NO.

This case arises out of a murder conviction and a challenge to the standard jury instructions in which manslaughter, as a necessary lesser included crime, contained language in which the jury was instructed that manslaughter required proof of the defendant's intent to specifically kill the deceased.

The court held that: Although in some cases of manslaughter by act it may be inferred from the facts that the defendant intended to kill the victim, to impose such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim. Thus, we conclude that under Florida law, the crime of manslaughter by act does not require proof that the defendant intended to kill the victim.

However, the jury instruction in question contained this language:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:

1. (Victim) is dead. 2. a. (Defendant) intentionally caused the death of (victim).

The court held that: we conclude that this language was insufficient to erode the import of the second element: that the jury must find that the defendant intended to cause the death of the victim. We agree with the district court‘s observation in Montgomery that a reasonable jury would believe that in order to convict Montgomery of manslaughter by act, it had to find that he intended to kill Ellis.

But was the error fundamental, necessitating a new trial for the appellant? Yup. Winner winner chicken dinner for the appellant!

Montgomery was entitled to an accurate instruction on the lesser included offense of manslaughter. The instruction in this case, requiring the jury to find that Montgomery intended to kill Ellis, erroneously explained Florida law on manslaughter by act. Moreover, it was ―pertinent or material to what the jury must consider in order to convict.‖ State v. Delva, 575 So. 2d 643, 645 (Fla. 1991) (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982)). Thus, we conclude that fundamental error occurred in this case, where Montgomery was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter.

So there you have it. Dinner at Raos and a new jury instruction for Manslaughter.

See you in court.