Cisneros-Gonzalez v. State

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 17, 2016. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D14-1821 Lower Tribunal No. 04-13073 ________________

Jose Cisneros-Gonzalez, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge.

Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.

Before SUAREZ, C.J., and EMAS and LOGUE, JJ.

ON CONFESSION OF ERROR

LOGUE, J. A jury convicted Jose Cisneros-Gonzalez of kidnapping, 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).