Cubelo v. State

ON REMAND

ROTHENBERG, J.

Upon remand by the Florida Supreme Court for reconsideration based upon its decision in Haygood v. State, 109 So.3d 735 (Fla.2013), we reverse Ariel Cubelo’s conviction and sentence for second-degree murder with a weapon (a knife) and remand for a new trial.

In State v. Montgomery, 39 So.3d 252, 258 (Fla.2010), the Florida Supreme Court held that use of the standard jury instruction for manslaughter by act was erroneous and that giving the erroneous instruction was fundamental error where Montgomery was convicted of second-degree murder, which is only one step removed from manslaughter. In Haygood, the Florida Supreme Court addressed whether the trial court’s fundamental error in giving the erroneous manslaughter by act jury instruction was cured by also giving the jury an instruction on manslaughter by culpable negligence. The Court concluded that the erroneous manslaughter by act instruction was not cured by also giving the jury a manslaughter by culpable negligence instruction where the evidence supports a finding of manslaughter by act, the evidence does not support a finding of manslaughter by culpable negligence, and the defendant is convicted of second-degree murder. Haygood, 109 So.3d at 737.

Upon review, because Cubelo’s jury was provided with the same erroneous manslaughter by act instruction the Florida Supreme Court addressed in Montgomery and Haygood, the evidence presented supports manslaughter by act and does not support manslaughter by culpable negligence, and Cúbelo was convicted of second-degree murder, the error was fundamental error requiring a reversal. Accordingly, we reverse Cubelo’s conviction and sentence for second-degree murder and remand for a new trial.

Reversed and remanded.