FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
for Review of the Decision of the District Court of Appeal -
Certified Direct Conflict of Decisions Broward County Fourth
District - Case No. 4D08-2031
Jo Bondi, Attorney General, Tallahassee, Florida; Celia A.
Terenzio, Bureau Chief, and Jeanine Germanowicz, Assistant
Attorney General, West Palm Beach, Florida, for Petitioner.
Haughwout, Public Defender, Richard B. Greene, and Patrick B.
Burke, Assistant Public Defenders, Fifteenth Judicial
Circuit, West Palm Beach, Florida, for Respondent.
case is before the Court for review of the decision of the
Fourth District Court of Appeal in Dominique v.
State (Dominique II), 171 So.3d 204 (Fla. 4th
DCA 2015). The district court certified that its decision is
in express and direct conflict with the decision of the Third
District Court of Appeal in Dawkins v. State, 170
So.3d 81 (Fla. 3d DCA 2015). We have jurisdiction.
See art. V, § 3(b)(4), Fla. Const. For the
reasons we explain, we quash the decision in Dominique
II and approve the decision in Dawkins.
AND PROCEDURAL BACKGROUND
Dominique was charged with first-degree murder and ultimately
convicted of the second-degree murder of Dwayne Clementson.
Dominique II, 171 So.3d at 204. The district court
provided a brief summary of the facts as follows:
At the trial, the state presented evidence that the defendant
was outside of his former girlfriend's house when her new
boyfriend arrived by car. When the new boyfriend exited his
car, the defendant chased the new boyfriend down the street
while firing a gun, shooting the new boyfriend in the leg
which caused him to fall, and then shooting the new boyfriend
in the back of the head, killing him.
The state argued that the defendant's actions constituted
first-degree murder. The defendant argued that his actions in
chasing the new boyfriend down the street while firing his
gun was [sic], at worst, manslaughter by culpable negligence.
The trial court instructed the jury on first-degree murder,
second-degree murder, manslaughter by act, and manslaughter
by culpable negligence. The jury found the defendant guilty
of second-degree murder.
Id. at 204-05.
jury was instructed on the lesser included offense of
manslaughter by act with the same instruction that this Court
found to be fundamentally erroneous in State v.
Montgomery, 39 So.3d 252 (Fla. 2010), which instructed
the jury that to convict for manslaughter by act, the jury
must find that the defendant intentionally caused the death
of the victim-a finding of an intent to kill that was not an
element of the offense of manslaughter by act. On direct
appeal, Dominique argued that he was entitled to relief in
light of Montgomery, but the Fourth District
disagreed and affirmed. See Dominique II, 171 So.3d
at 205. The Fourth District rejected the fundamental error
claim based on the fact that the trial court also instructed
the jury on the lesser included offense of manslaughter by
culpable negligence. See Dominique v. State
(Dominique I), 40 So.3d 33, 36 (Fla. 4th DCA 2010).
case then came to this Court on petition for review of the
decision in Dominique I. However, we stayed that
case pending the disposition of the review of the decision of
the Second District Court of Appeal in Haygood v.
State, 54 So.3d 1035 (Fla. 2d DCA 2011), which was then
before this Court. Our decision in Haygood v. State,
109 So.3d 735 (Fla. 2013), was subsequently issued and held
that the fundamental error caused by the erroneous
Montgomery manslaughter by act instruction was not
cured by giving the instruction on manslaughter by culpable
negligence where there was no evidence from which a jury
could reasonably convict of manslaughter by culpable
negligence. See id. at 743. After our decision in
Haygood was issued, and upon review of the response
to this Court's Order to Show Cause, we granted the
petition for review, summarily quashed the decision of the
Fourth District in Dominique I, and remanded to the
district court for reconsideration in light of our decision
in Haygood. See Dominique v. State, 160
So.3d 894 (Fla. 2014) (table report of unpublished order).
remand, the Fourth District reversed the conviction and held
that fundamental error occurred in the giving of the jury
instruction for manslaughter by act, requiring a new trial.
Dominique II, 171 So.3d at 204. The Fourth District
interpreted our decision in Haygood to require a new
trial any time the erroneous manslaughter by act instruction
is given and the defendant is convicted of an offense not
more than one step removed from manslaughter-regardless of
whether the evidence could support a finding of manslaughter
by culpable negligence. The district court certified express
and direct conflict with Dawkins v. State, 170 So.3d
81, 81 (Fla. 3d DCA 2015), and the State sought review of
Dominique II in this Court based on that certified
case, the State contends that the Fourth District in
Dominique II misreads Haygood and other
cases following Montgomery to incorrectly hold that
the erroneous manslaughter by act instruction is fundamental
error in all cases, regardless of whether the manslaughter by
culpable negligence instruction is given and regardless of
whether there is evidence that reasonably supports
manslaughter by culpable negligence. Thus, this iteration of
a Montgomery challenge focuses on the district
court's interpretation of this Court's decision in
Fourth District concluded that this Court's evolution
from Montgomery to Haygood to
Griffin demonstrates that giving the manslaughter
by act instruction is per se reversible error, even where
there is evidence that could support a finding of
manslaughter by culpable negligence. The court stated that
the culpable negligence instruction "cannot under any
circumstance cure" the error created by the faulty
manslaughter by act instruction because the error is always
pertinent or material to what the jury had to consider to
convict the defendant of manslaughter. Dominique II,
171 So.3d at 207. The district court also noted, "We
recognize the state's factual distinction from
Haygood that giving the erroneous manslaughter by
act instruction is fundamental error where the evidence does
not support the accompanying manslaughter by culpable
negligence instruction, whereas here the evidence arguably
supported the accompanying manslaughter by culpable
negligence instruction." Id. at 205.
Nevertheless, the district court went on to find the error
fundamental and per se reversible. The Fourth District
In contrast to the Third District [in Dawkins],
under our reading of the evolving precedent from
Montgomery to Haygood to Griffin,
giving the manslaughter by culpable negligence instruction
cannot under any circumstance cure the fundamental error
caused by giving the erroneous manslaughter by act
instruction, even where the evidence reasonably could support
a finding of manslaughter by culpable negligence.
Id. at 207 (bracketed material added).
Dawkins held that "where the jury was also
instructed in manslaughter by culpable negligence and the
evidence could reasonably support so finding,
the error in giving the flawed Montgomery
manslaughter by act instructions was not per se fundamental
error." 170 So.3d at 83. Thus, the Fourth District
certified conflict with Dawkins. Before resolving
the certified conflict, we review our decision in
Haygood, which is central to this case.
2013, this Court issued its decision in Haygood,
which is yet another case arising out of a
Montgomery fundamental error claim. In
Haygood, we stated:
We hold that giving the erroneous manslaughter by act
instruction, which we found to be fundamental error in
State v. Montgomery, 39 So.3d 252 (Fla. 2010), is
also fundamental error even if the instruction on
manslaughter by culpable negligence is given where the
evidence supports manslaughter by act but does not support