Cunningham v. State

District Court of Appeal of Florida

Cunningham v. State

162 So. 3d 1, 2014 WL 714714, 2014 Fla. App. LEXIS 2577

CourtDistrict Court of Appeal of Florida

DecidedFebruary 26, 2014

DocketNo. 4D09-2737

StatusPublished

Cited by4 cases

This text of 162 So. 3d 1 (Cunningham v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cunningham v. State, 162 So. 3d 1, 2014 WL 714714, 2014 Fla. App. LEXIS 2577 (Fla. Ct. App. 2014).

Pincite

Opinion

ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

Milagro Cunningham was tried by jury and convicted of attempted second-degree murder, a lesser included offense of the charged attempted first-degree murder (count I); kidnapping a child under thirteen years of age (count II); three counts of sexual battery on a child under twelve years of age (counts III, IV and V); and aggravated child abuse (count VI). The defendant appealed, challenging both his convictions and the resulting sentences. We affirmed the defendant’s convictions, but reversed the life sentences imposed for counts II, III, IV and V in light of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), remanding for resentencing on these counts.

[2]*2Among the issues defendant raised was a claim that the trial court fundamentally erred by giving the then-standard jury instruction for the lesser-included offense of attempted manslaughter by act. We resolved this issue adversely to the defendant, relying upon our earlier decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“Williams I”). The defendant petitioned for review in the Florida Supreme Court, and while the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. See Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

Id. at 27.

By order, the supreme court accepted jurisdiction of this case, quashed this court’s opinion, and remanded for reconsideration upon application of its opinion in Williams II. Cunningham v. State, 134 So.2d 446 (Fla.2014). In light of Williams II, we hold that the trial court committed fundamental error in giving the then-standard jury instruction on attempted manslaughter by act.

' Accordingly, we reverse the defendant’s conviction for attempted second-degree murder and remand for a new trial on that count. Defendant’s convictions for counts II, III, IV, V and VI are unaffected by Williams and are, accordingly, once again affirmed.

Affirmed in part; Reversed in Part; and Remanded for Proceedings Consistent with this Opinion.

STEVENSON, MAY and CIKLIN, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

Milagro Cunningham was tried by jury and convicted of attempted second-degree murder, a lesser included offense of the charged attempted first-degree murder (count I); kidnapping a child under thirteen years of age (count II); three counts of sexual battery on a child under twelve years of age (counts III, IV and V); and aggravated child abuse (count VI). The defendant appealed, challenging both his convictions and the resulting sentences. We affirmed the defendant’s convictions, but reversed the life sentences imposed for counts II, III, IV and V in light of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), remanding for resentencing on these counts.

[2]*2Among the issues defendant raised was a claim that the trial court fundamentally erred by giving the then-standard jury instruction for the lesser-included offense of attempted manslaughter by act. We resolved this issue adversely to the defendant, relying upon our earlier decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“Williams I”). The defendant petitioned for review in the Florida Supreme Court, and while the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. See Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

Id. at 27.

By order, the supreme court accepted jurisdiction of this case, quashed this court’s opinion, and remanded for reconsideration upon application of its opinion in Williams II. Cunningham v. State, 134 So.2d 446 (Fla.2014). In light of Williams II, we hold that the trial court committed fundamental error in giving the then-standard jury instruction on attempted manslaughter by act.

' Accordingly, we reverse the defendant’s conviction for attempted second-degree murder and remand for a new trial on that count. Defendant’s convictions for counts II, III, IV, V and VI are unaffected by Williams and are, accordingly, once again affirmed.

Affirmed in part; Reversed in Part; and Remanded for Proceedings Consistent with this Opinion.

STEVENSON, MAY and CIKLIN, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

162 So. 3d 1, 2014 WL 714714, 2014 Fla. App. LEXIS 2577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-state-fladistctapp-2014.

Opinion

Related

Cite This Page — Counsel Stack