Pharisien v. State

District Court of Appeal of Florida

Pharisien v. State

176 So. 3d 1284, 2015 Fla. App. LEXIS 16133, 2015 WL 6613339

CourtDistrict Court of Appeal of Florida

DecidedOctober 30, 2015

Docket2D10-959

StatusPublished

Cited by1 cases

This text of 176 So. 3d 1284 (Pharisien 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.

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Pharisien v. State, 176 So. 3d 1284, 2015 Fla. App. LEXIS 16133, 2015 WL 6613339 (Fla. Ct. App. 2015).

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Opinion

*1285 ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

Upon remand from the Florida Supreme Court, we reconsider Jerry Pharisien’s convictions for second-degree murder with a firearm and attempted second-degree murder with a firearm' in light of the subsequent decisions in Griffin v. State, 160 So.3d 63 (Fla.2015), and Daniels v. State, 121 So.3d 409 (Fla.2013). Because the 2008 standard jury instruction on manslaughter by act suffers from the same infirmity found erroneous in State v. Montgomery, 39 So.3d 252 (Fla.2010), the jury instruction given at Pharisien’s trial was erroneous. See Daniels, 121 So.3d at 419. And because Pharisien was convicted of second-degree murder, which is only one step removed from the necessarily lesser-included offense of manslaughter, this error was fundamental. Id. at 415, 419. The fact that Pharisien’s defense was that hé was simply not present at the scene of the shootings does not change this result. See Griffin, 160 So.3d at 67 (determining that “a sole defense of misidentification does not concede or fail to place in dispute intent or any other element of the crime charged except identity when the offense charged is an unlawful homicide”). Accordingly, we reverse and remand to the circuit court for a new trial.

Reversed and remanded for a new trial.

NORTHCUTT, 1 KHOUZAM, and CRENSHAW, JJ., Concur.

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*1285 ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

Upon remand from the Florida Supreme Court, we reconsider Jerry Pharisien’s convictions for second-degree murder with a firearm and attempted second-degree murder with a firearm' in light of the subsequent decisions in Griffin v. State, 160 So.3d 63 (Fla.2015), and Daniels v. State, 121 So.3d 409 (Fla.2013). Because the 2008 standard jury instruction on manslaughter by act suffers from the same infirmity found erroneous in State v. Montgomery, 39 So.3d 252 (Fla.2010), the jury instruction given at Pharisien’s trial was erroneous. See Daniels, 121 So.3d at 419. And because Pharisien was convicted of second-degree murder, which is only one step removed from the necessarily lesser-included offense of manslaughter, this error was fundamental. Id. at 415, 419. The fact that Pharisien’s defense was that hé was simply not present at the scene of the shootings does not change this result. See Griffin, 160 So.3d at 67 (determining that “a sole defense of misidentification does not concede or fail to place in dispute intent or any other element of the crime charged except identity when the offense charged is an unlawful homicide”). Accordingly, we reverse and remand to the circuit court for a new trial.

Reversed and remanded for a new trial.

NORTHCUTT, 1 KHOUZAM, and CRENSHAW, JJ., Concur.

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176 So. 3d 1284, 2015 Fla. App. LEXIS 16133, 2015 WL 6613339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pharisien-v-state-fladistctapp-2015.

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