Garrido v. State , 76 So. 3d 378 ( 2011 )

76 So. 3d 378 (2011)

William GARRIDO, Appellant,
v.
STATE of Florida, Appellee.

No. 3D10-722.

District Court of Appeal of Florida, Third District.

December 28, 2011.

Carlos J. Martinez, Public Defender, and Joanna G. Ingalls and Thomas Regnier, Assistant Public Defenders, for appellant.

Pamela Jo Bondi, Attorney General, Forrest L. Andrews, Jr., Assistant Attorney General, and Douglas Glaid, Senior Assistant Attorney General, for appellee.

Before RAMIREZ, SHEPHERD and SUAREZ, JJ.

Prior report: 2010 WL 3217630, 2009 WL 6763914.

PER CURIAM.

William Garrido appeals his conviction and sentence for second degree murder, alleging the trial court erred in the manslaughter instruction given to the jury. We affirm based on Figueroa v. State, ___ So.3d ___, 2011 WL 5554830 (Fla. 3d DCA 2011). As we did in Figueroa, we certify conflict with the First District's opinions in Noack v. State, 61 So. 3d 1208 (Fla. 1st DCA 2011), Pryor v. State, 48 So. 3d 159 (Fla. 1st DCA 2010), and Riesel v. State, 48 So. 3d 885 (Fla. 1st DCA 2010).

Additionally, we certify the following question to the Florida Supreme Court as one of great public importance:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING A FLAWED MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE?

Affirmed.