Graham v. State

89 So. 3d 1110, 2012 WL 2120851, 2012 Fla. App. LEXIS 9569

Opinion

GERBER, J.

The defendant appeals from his convictions and sentences for second degree murder with a firearm, aggravated battery with a firearm, willfully discharging a firearm within 1,000 feet of a person, and shooting into an occupied vehicle. He raises two arguments: (1) the trial court gave an erroneous jury instruction on manslaughter as a lesser included offense of second degree murder; and (2) the trial court erred in sustaining the state’s objection to certain cross-examination of a state witness.

We agree with the first argument. We direct the circuit court to vacate the defendant’s conviction and sentence for second degree murder with a firearm and conduct a new trial on that count. State v. Montgomery, 39 So.3d 252 (Fla.2010).

The second argument is without merit. Therefore, we affirm the defendant’s convictions and sentences for aggravated battery with a firearm, willfully discharging a firearm within 1,000 feet of a person, and shooting into an occupied vehicle.

Affirmed in part, reversed in part, and remanded for new trial on Count I only.

MAY, C.J., and HAZOURI, J., concur.