final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Eileen M. O'Connor, Judge; L.T. Case No.
Haughwout, Public Defender, and John M. Conway and Paul E.
Petillo, Assistant Public Defenders, West Palm Beach, for
Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley,
Nancy Jack and Heidi L. Bettendorf, Assistant Attorneys
General, West Palm Beach, for appellee.
REMAND FROM THE FLORIDA SUPREME COURT
remand from the Florida Supreme Court, we are tasked with
reconsidering our previous decision in light of State v.
Dominique, 215 So.3d 1227 (Fla. 2017). The defendant was
charged with first-degree murder with a firearm and convicted
of the lesser included offense of second-degree murder with a
firearm. He argues that the manslaughter by act instruction,
previously deemed to constitute fundamental error for
requiring a finding of an intent to kill,  was not cured by
the giving of the manslaughter by culpable negligence jury
instruction. We disagree and affirm.
Haygood v. State, 109 So.3d 735, 743 (Fla. 2013),
the court held as follows:
[G]iving the manslaughter by culpable negligence instruction
does not cure the fundamental error in giving the erroneous
manslaughter by act instruction where the defendant is
convicted of an offense not more than one step removed from
manslaughter and the evidence supports a finding of
manslaughter by act, but does not reasonably support a
finding that the death occurred due to the culpable
negligence of the defendant.
in Dominique, another case involving a conviction
for the lesser included offense of second-degree murder, the
supreme court elaborated on the circumstances under which
giving the manslaughter by culpable negligence instruction
cures the error addressed in Haygood:
[W]here a jury determines that the evidence does not prove an
intent to kill, the jury must then determine if any lesser
included offense not requiring an intent to kill is available
for their consideration and has been proven. Where the
instruction on manslaughter by culpable negligence is given
as well as the instruction for second-degree murder, the jury
will examine the evidence for proof of the level of disregard
for safety and human life and for evidence, if any, of an act
imminently dangerous to another and demonstrating a depraved
mind without regard for human life. Both lesser included
offenses lack any requirement of an intent to kill. Whether
the defendant is guilty of one or the other will turn in
large part on whether the defendant is proved to have
committed the homicide with a level of ill will, hatred,
spite, or evil intent rising to the level of a depraved mind
required for second-degree murder. Therefore, we examine the
evidence presented during trial to determine if it reasonably
could support a finding by the jury that the killing resulted
from culpable negligence, thus providing the jury with a
viable alternative to second-degree murder that also did not
require an intent to kill.
215 So.3d at 1235. The court then reviewed the evidence
introduced at trial:
The testimony established that on the night of the shooting,
Dominque was on the telephone with his girlfriend, Vonshell
Lindsay, when she told him their breakup was final and that
she was getting back together with Clementson, the victim in
this case. At that same moment, Dominique, who was sitting in
a borrowed car in Lindsay's neighborhood, saw Clementson
drive toward the house where Lindsay was visiting. Although
Dominique was in the neighborhood, he told police it was only
to talk with Lindsay, and there was no evidence that
Dominique knew Clementson would be there. Dominique told
police that he had a gun with him in the car he borrowed from
his sister, explaining to police that he usually had it with
him. When Dominique started walking toward Lindsay's
house, Clementson drove by him. Dominique told officers that
at that point, he grabbed the gun and went after Clementson,
firing "a whole bunch of shots" while running. He
told police he was shooting wildly without aiming, and that
he hoped Clementson was still alive. Witnesses also testified
that Dominique was running in the dark while firing with his
arm extended. The only witness who saw Dominique actually
fire the gun testified first that he took aim, but she almost
immediately receded from that testimony and agreed that
"[i]t was not like he stood there and [sighted in on]
the man before he took the shot."
Id. at 1236 (alterations in original). The court
affirmed the defendant's conviction, reasoning ...