Berube v. State

84 So. 3d 436, 2012 WL 1110153, 2012 Fla. App. LEXIS 5167

Opinion

ALTENBERND, Judge.

Leo Richard Berube appeals his judgment and life sentence for second-degree murder. This court reversed an earlier judgment and sentence and remanded the case for a new trial. See Berube v. State, 5 So.3d 734, 736 (Fla. 2d DCA 2009). We affirm the new judgment and sentence in all respects. We write only to certify that this decision conflicts with Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), concerning the jury instruction on the lesser included offense of manslaughter. For the reasons set forth in this court’s decision in Daniels v. State, 72 So.3d 227, 230 (Fla. 2d DCA 2011), this jury instruction did not constitute fundamental error.

Affirmed; conflict certified.

SILBERMAN, C.J., and WALLACE, J., Concur.