Jackson v. State

49 So. 3d 271, 2010 Fla. App. LEXIS 12710, 2010 WL 3398390

Opinion

PER CURIAM.

Danny T. Jackson appeals his judgment and sentence for second degree murder arguing that State v. Montgomery, 39 So.3d 252 (Fla.2010), approving Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009), requires reversal because the jury was given the then-existing standard instruction on manslaughter by act which imposed upon the jury the requirement to find that the defendant intended to kill the victim. Subsequent to Montgomery, in Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), this court relied upon its previous decision in Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010), and ruled that fundamental error does not occur even if the jury was given the erroneous manslaughter by act instruction if the jury was also instructed on manslaughter by culpable negligence giving the jury the option of finding the appellant guilty of a lesser included offense which did not require an intent to kill. As in Joyner and Salonko, even though the erroneous instruction on manslaughter by act was given, the jury in this case was given the option of finding manslaughter by culpable negligence. We are bound to follow our decisions in Joyner and Salonko. See also Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010); Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010).

AFFIRMED.

HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur.