Burgos v. State

32 So. 3d 130 (2009)

Catalino BURGOS, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 2D08-2895.

District Court of Appeal of Florida, Second District.

December 18, 2009.

James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Catalino Burgos appeals his judgment and sentence for second-degree murder following a jury trial and argues that the trial court erred in denying his motion for judgment of acquittal and in instructing the jury on the lesser-included offense of manslaughter by act. We affirm the denial of Burgos's motion for judgment of acquittal without comment. With respect to Burgos's assertion that the trial court fundamentally erred in giving the then-standard jury instruction on the lesser-included offense of manslaughter by intentional act, we affirm pursuant to our decision in Zeigler v. State, 18 So. 3d 1239 (Fla. 2d DCA 2009). As in Zeigler, we certify conflict with the First District's decision in Montgomery v. State, ___ So.3d ___ (Fla. 1st DCA 2009), review granted, 11 So. 3d 943 (Fla.2009).

Judgment and sentence affirmed; conflict certified.

NORTHCUTT and VILLANTI, JJ., Concur.