Cisneros-Gonzalez v. State

185 So. 3d 714, 2016 Fla. App. LEXIS 2229, 2016 WL 634100

• Court: District Court of Appeal of Florida
• Decided: February 17, 2016
• Docket: No. 3D14-1821
• Status: Published

Opinion

ON CONFESSION OF ERROR

logue; J.

.A jury convicted Jose Cisneros-Gonzalez of Mdnapping, sexual battery, and attempted second-degree murder. He raises two issues on appeal: (1) whether the trial court failed to conduct an adequate Nelson¹ hearing; and (2) whether the trial court fundamentally erred when it instructed the jurors that intent to kill was an element of attempted voluntary manslaughter.

Finding no error on the first issue, we affirm Cisneros-Gonzalez’s convictions of sexual battery and kidnapping. However, based on the State’s proper confession of error pursuant to Griffin v. State, 160 So.3d 63 (Fla.2015), we reverse and remand for a new trial on the attempted second-degree- murder conviction. Like the defendant in Griffin, the defendant here was convicted of a crime one step removed from the erroneous manslaughter instruction, and he did not concede the issue of intent.

Affirmed in part; reversed in part; and remanded for a new trial on the attempted second-degree murder charge.

1 . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).