Gland v. State , 2015 Fla. App. LEXIS 8592 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TYREE GLAND, )
)
Appellant, )
)
v. ) Case No. 2D10-3767
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 5, 2015.
Appeal from the Circuit Court for Pinellas
County; Philip J. Federico, Judge.
Charles E. Lykes, Jr., Clearwater, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba Caridad Martin-
Schomaker, and Anne Sheer Weiner,
Assistant Attorneys General, Tampa, for
Appellee.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
DAVIS, CHARLES A., Senior Judge.
On June 24, 2010, Tyree Gland was adjudicated guilty of second-degree
murder and delinquent in possession of a firearm. He was sentenced to life in prison for
the murder charge and to a concurrent fifteen-year sentence on the firearm charge.
This court affirmed his convictions and sentences by opinion issued October 5, 2011.
Gland v. State, 72 So. 3d 216 (Fla. 2d DCA 2011).
On June 11, 2014, the Florida Supreme Court partially quashed our
opinion and remanded the case to this court for reconsideration and application of
Haygood v. State, 109 So. 3d 735 (Fla. 2013), to one of the issues raised by Mr. Gland.
Gland v. State, 145 So. 3d 824 (Fla. 2014) (table decision).
The issue we must now reconsider involves the giving of the standard jury
instruction for manslaughter by act that was determined to be erroneous in State v.
Montgomery, 39 So. 3d 252 (Fla. 2010).1 We previously affirmed Mr. Gland's conviction
and sentence for second-degree murder. In doing so, we cited opinions that are no
longer good law in light of Haygood, 109 So. 3d 735. Having now reconsidered the
facts of the instant case in light of Haygood and the Florida Supreme Court's recent
opinion in Griffin v. State, 160 So. 3d 63 (Fla. 2015), we reverse Mr. Gland's judgment
and sentence.
Mr. Gland's second-degree murder charge stems from the shooting death
of Deandre Brown, a pedestrian who was present for the culmination of a series of
altercations that occurred over the course of one night in the streets of St. Petersburg.
At trial, Mr. Gland raised a defense of misidentification; he did not deny that the victim
died of a gunshot, but he maintained that he was not there or was not the one who fired
the fatal shot.
1
In his original appeal, Mr. Gland raised four issues. Our prior opinion
affirmed two of the issues without discussion and explained this court's reasoning in
affirming the other two issues, one of which is the subject of our current review. We do
not further address the other three issues raised by Mr. Gland on appeal as they were
fully addressed by our earlier opinion. See Gland, 72 So. 3d 216.
-2-
At the conclusion of trial, Mr. Gland requested that the jury be instructed
on the lesser included charge of manslaughter. The trial court granted his request and
gave standard instructions on both manslaughter by act and manslaughter by culpable
negligence. It is undisputed that the standard instruction for manslaughter by act given
at Mr. Gland's trial contained erroneous language that required a jury finding that the
defendant intentionally caused the death of the victim. Nevertheless, we previously
affirmed Mr. Gland's conviction because we concluded that the fact that the
manslaughter by culpable negligence instruction also was given sufficiently overcame
the error in the manslaughter by act instruction. But in Haygood, the Florida Supreme
Court has since concluded that the giving of the culpable negligence instruction is
insufficient to cure the fundamental nature of the error unless the facts of a case support
the giving of both instructions. 109 So. 3d at 741.
Following Haygood, the supreme court issued Griffin, 160 So. 3d 63, in
which the State argued that the erroneous intent language in the instruction on
manslaughter by act was not harmful where the appellant's sole defense at trial was
mistaken identity and the issue of the intent of the actual perpetrator was not contested
by the defendant at trial. The supreme court rejected this argument, concluding as
follows:
In the present case, other than the fact that [the victim] was
shot, Griffin did not concede any other elements of the crime
charged; he simply contested his identity as the perpetrator.
. . . Thus, we conclude that intent remained a matter that
was pertinent or material to what the jury must consider in
order to convict Griffin of the crime charged or a lesser
included offense, notwithstanding his claim of
misidentification.
Id. at 69.
-3-
Although the facts of Griffin are somewhat different than those in the
instant case, the reasoning applied in Griffin compels the same result here where Mr.
Gland too challenged only his identity as the perpetrator but did not concede any other
elements of the charged offense. We therefore conclude that the trial court committed
fundamental error in giving the standard jury instruction on the lesser included offense
of manslaughter by act. Mr. Gland's defense did not remove the intent issue from the
jury's consideration, and the giving of the instruction on manslaughter by culpable
negligence was not sufficient to correct the error. See Haygood, 109 So. 3d at 741.
Accordingly, we reverse Mr. Gland's conviction for second-degree murder and remand
for new trial on this charge.
Reversed and remanded.
ALTENBERND and WALLACE, JJ., Concur.
-4-