FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition for Writ of Certiorari to the Circuit Court for
Collier County; Joseph G. Foster, Judge.
Moody, Attorney General, Tallahassee, and Dawn A. Tiffin,
Assistant Attorney General, Tampa; and Cynthia Richards,
Assistant Attorney General, Tampa (substituted as counsel of
record), for Petitioner.
A. Ermacora, Fort Myers, for Respondent.
unusual case, the State of Florida has petitioned for a writ
of certiorari directed to an order that dismissed Jerry
Pharisien's motion for postconviction relief and ordered
a new trial on his attempted second-degree murder charge. The
State contends that our mandate in Pharisien's direct
appeal did not authorize a new trial on that charge. We
sympathize with the postconviction court's effort to
interpret our admittedly ambiguous opinion in the prior
appeal, but we agree with the State that we did not authorize
a new trial on the attempt charge.
case began its jouncy odyssey in 2010, when a jury convicted
Pharisien of one count of second-degree murder and one count
of attempted second-degree murder arising from a shooting at
a nightclub. When instructing the jury on the second-degree
murder count, the trial court had read the standard
instruction for manslaughter by act, a necessarily
lesser-included offense of second-degree murder. On appeal,
Pharisien contended that the instruction was fundamentally
erroneous. See Pharisien v. State, 74 So.3d 156, 157
(Fla. 2d DCA 2011). When affirming Pharisien's
convictions we held that the manslaughter instruction given
at Pharisien's trial, which had been amended in 2008,
sufficiently differed from the preamendment version that the
supreme court had held erroneous in State v.
Montgomery, 39 So.3d 252 (Fla. 2010).
Pharisien, 74 So.3d at 158. We certified conflict
with the First District's contrary view that the amended
instruction was also misleading. Id.
supreme court resolved the conflict in Daniels v.
State, 121 So.3d 409, 417 (Fla. 2013), and held that the
instruction as amended in 2008 was ambiguous and erroneous.
In light of Daniels and a related decision in
Griffin v. State, 160 So.3d 63 (Fla. 2015), the
supreme court quashed our decision in Pharisien's case
and remanded it to us "for reconsideration upon
application of" Griffin and Daniels.
See Pharisien v. State, 177 So.3d 1270
(Fla. 2015) (unpublished table decision). Thereafter, we
issued the following opinion:
Upon remand from the Florida Supreme Court, we reconsider
Jerry Pharisien's convictions for second-degree murder
with a firearm and attempted second-degree murder with a
firearm in light of the subsequent decisions in
[Griffin] and [Daniels]. Because the 2008
standard jury instruction on manslaughter by act suffers from
the same infirmity found erroneous in [Montgomery],
the jury instruction given at Pharisien's trial was
erroneous. See Daniels, 121 So.3d at 419. And
because Pharisien was convicted of second-degree murder,
which is only one step removed from the necessarily
lesser-included offense of manslaughter, this error was
fundamental. Id. at 415, 419. The fact that
Pharisien's defense was that he was simply not present at
the scene of the shootings does not change this result.
See Griffin, 160 So.3d at 67 (determining that
"a sole defense of misidentification does not concede or
fail to place in dispute intent or any other element of the
crime charged except identity when the offense charged is an
unlawful homicide"). Accordingly, we reverse and remand
to the circuit court for a new trial.
Reversed and remanded for a new trial.
Pharisien v. State, 176 So.3d 1284, 1285 (Fla. 2d
the remand proceedings in the trial court, both the State and
defense counsel indicated on the record that our 2015
decision reversed only the conviction for second-degree
murder and left the attempt conviction undisturbed. Pharisien
then entered a negotiated plea of no contest to the
second-degree murder charge and received a twenty-five-year
sentence concurrent to the thirty-year sentence that
previously had been imposed on the attempt count.
2018, Pharisien filed a pro se motion for postconviction
relief under Florida Rule of Criminal Procedure 3.850,
raising several claims related to his conviction for
attempted second-degree murder. The State responded that the
motion was untimely as to that 2010 conviction, which it
asserted had been unaffected by our 2015 decision. However,
the postconviction court read our 2015 opinion differently
than counsel and the trial court had at the hearing on
remand. It posited that we had reversed both the
second-degree murder and the attempted second-degree murder
convictions. Accordingly, it held that Pharisien's rule
3.850 motion was timely and it directed the State to
supplement its response. The State filed a motion asking the
court to reconsider its ruling as to timeliness, but the
court denied that motion, reaffirming its conclusion that we
had reversed both convictions. Then, reasoning that the
conviction to which the rule 3.850 motion was directed had
already been vacated, the court dismissed the motion,
appointed counsel for Pharisien, and set the case on course
for a new trial on the attempted second-degree murder charge.
The State now seeks certiorari review of the order, arguing
that the court is proceeding contrary to our 2015 mandate.
our 2015 opinion reversing and remanding for a new trial was
ambiguously worded and reasonably susceptible to more than
one interpretation. We understand why the postconviction
court read the opinion as it did. However, the facts of the
case and the reasoning set forth in the 2015 opinion
establish that we set aside only the second-degree murder
conviction. The reversal was based on the supreme court's
holding that the standard jury instruction for manslaughter
by act, as amended in 2008, was erroneous. See
Daniels, 121 So.3d at 415-18; Pharisien, 176
So.3d at 1285. Specifically, we held that the instruction
constituted fundamental error in Pharisien's case
"because Pharisien was convicted of second-degree
murder, which is only one step removed from the