Public-domain · open source
OpenJurist

22 So. 3d 691

Nieves v. State

District Court of Appeal of Florida

Decided November 6, 2009

District Court of Appeal of Florida · decided 2009-11-06

Cited by 17 later decisions — most recently February 2018

1 federal appellate · 15 state decisions

Key passage — most relied on by later courts

“Although the jury found, by its second-degree murder verdict, that Appellant did not intend to kill the victim, based on the instructions given, it could have returned a verdict for the lesser-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill. Unlike in Montgomery , the jury in the instant case was not directed to choose the greater offense simply because the lesser-included offense would have improperly required a more depraved level of intent. Therefore, Appellant has not shown that fundamental error occurred under this Court’s opinion in Montgomery .”

quoted by 2 later decisions, including Barros-Dias v. State, 54 So. 3d 1035 - Haygood v. State

“To prove the crime of manslaughter the State must prove the following two elements beyond a reasonable doubt: Number one, [the victim] is dead; 2A, Frank Salonko intentionally caused the death of [the victim] or, 2B, the death of [the victim] was caused by the culpable negligence of Frank Salonko. However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms. In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death. I will now define culpable negligence for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty without any conscious intent to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care towards others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been”

quoted by 1 later decision, including Salonko v. State

Relies on 997 So. 2d 403 - In Re Standard Instruct. in Cr. Cases No. 2007-10 · Wright v. State · Zeigler v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2009-11-06

View the full empirical analysis of this case →

KHOUZAM, Judge.

¶1 Angel Manuel Nieves appeals his judgment and sentence for second-degree murder. Nieves contends that the trial court committed fundamental error when it instructed the jury on the lesser-included offense of manslaughter by act because the standard instruction in effect at the time of and given at his trial improperly imposed the additional element of “intent to kill” to that offense. 1 In support of his contention, Nieves relies on Montgomery v. State, — So.3d - (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009), in which the First District determined that the trial court fundamentally erred in giving the standard instruction on manslaughter by act in effect at the time of Montgomery’s trial, which was virtually identical to the instruction given at Nieves’ trial. This court, however, recently held that the instruction was not fundamentally erroneous. See Zeigler v. State, 18 So.3d 1239, 1245-46 (Fla. 2d DCA 2009). Furthermore, unlike Montgomery and Zeigler, the jury in Nieves’ case was also instructed on the lesser-included offense of manslaughter by culpable negligence.

¶2 Accordingly, we affirm Nieves’ conviction and sentence, and as we did in Zeig-ler, we certify conflict with Montgomery.

¶3 Judgment and sentence affirmed; conflict certified.

WALLACE and MORRIS, JJ., Concur.
1

¶4 . The instruction given in Nieves' case is no longer the standard instruction for manslaughter by act. The instruction, which was modified by the supreme court in December 2008, now reads: "In order to convict of manslaughter by intentional act, it is not nec-essaiy for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008).

/22/so3d/691 · .json · Public domain