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124 So. 3d 421

Johnson v. State

District Court of Appeal of Florida

Decided October 25, 2013

District Court of Appeal of Florida · decided 2013-10-25

Relies on 39 So. 3d 252 - State v. Montgomery · 123 So. 3d 23 - Williams v. State

Decided 2013-10-25

PER CURIAM.

¶1Appellant, Michael D. Johnson, appeals his conviction and sentence for attempted second-degree murder. As properly conceded by the State, fundamental error occurred during the proceedings when the jury was read the attempted voluntary manslaughter by act instruction disapproved of in State v. Montgomery, 39 So.3d 252, 256 (Fla.2010) (“(Defendant) intentionally caused the death of (victim).”) (quoting Fla. Std. Jury Instr. (Crim.) 7.7 (2006)). See also Williams v. State, 123 So.3d 23, (Fla.2013) (extending Montgomeryto jury instruction on attempted volun*422tary manslaughter by act). We therefore reverse Appellant’s conviction and sentence for attempted second-degree murder and remand to the trial court for a new trial on that count. We affirm Appellant’s remaining conviction and sentence for possession of a firearm by a convicted felon.

¶2AFFIRMED in part, REVERSED in part and REMANDED.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.
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