Mike v. State , 2016 Fla. App. LEXIS 5772 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DEANTHONY E. MIKE, )
)
Appellant, )
)
v. ) Case No. 2D14-4538
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 15, 2016.
Appeal from the Circuit Court for Polk
County; Reinaldo Ojeda, Judge.
Howard L. Dimmig, II, Public Defender,
and Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.
CASANUEVA, Judge.
Deanthony E. Mike appeals his judgments and sentences for attempted
second-degree murder, aggravated assault with a firearm, and discharging a firearm
from a vehicle. We are required to reverse because the trial court committed
fundamental error in instructing the jury on attempted manslaughter.1
"[A] trial court commits fundamental error in giving the standard jury
instruction on attempted manslaughter by act where the defendant is convicted of a
crime no more than one step removed from the improperly instructed offense." Williams
v. State, 123 So. 3d 23, 27 (Fla. 2013). Mr. Mike was convicted of attempted second-
degree murder, a crime one step removed from attempted manslaughter. The trial
court's instruction to the jury on attempted manslaughter told the jury that the State had
to prove beyond a reasonable doubt that Mr. Mike "committed an act which was
intended to cause the death of" Mr. Smith. In Williams, 123 So. 3d at 25, the supreme
court held that this instruction was fundamental error. See also Griffin v. State, 160 So.
3d 63 (Fla. 2015); Hill v. State, 124 So. 3d 296 (Fla. 2d DCA 2013). Accordingly, Mr.
Mike's judgment and sentence for second-degree murder is reversed and remanded for
a new trial. His judgments and sentences for aggravated assault with a firearm and
discharging a firearm from a vehicle are affirmed.
Affirmed in part, reversed in part, and remanded.
LaROSE and SLEET, JJ., Concur.
1
We do not address the other issues Mr. Mike raises as it is unnecessary
to the resolution of this appeal.
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