DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CORNELL ROBERTS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-3877
[December 5, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No. 16-
003909CF10A.
Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P.
Picard, Assistant Attorney General, West Palm Beach, for appellee.
CONCESSION OF ERROR
PER CURIAM.
Appellant was charged with attempted first degree murder. Following
a jury trial, he was convicted of the lesser included offense of attempted
second degree murder. As the state concedes, the trial court’s failure to
instruct the jury on the necessarily included offense of attempted
manslaughter by act amounted to fundamental error because that offense
is one step removed from the convicted offense of attempted second degree
murder. See Walton v. State,
208 So. 3d 60, 64 (Fla. 2016); Coleman v.
State,
110 So. 3d 971, 972 (Fla. 2d DCA 2013). Nothing in the record
suggests that appellant expressly waived the instruction. Defense counsel
did not waive the error by failing to request an instruction on attempted
manslaughter by act. See Roberts v. State,
242 So. 3d 296,299 (Fla. 2018).
Reversed and remanded for a new trial.
GERBER, C.J., WARNER and GROSS, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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