Berube v. State

Full title: Leo Richard BERUBE, Appellant, v. STATE of Florida, Appellee.

Court: District Court of Appeal of Florida, Second District.

Date published: Apr 4, 2012

84 So. 3d 436 (Fla. Dist. Ct. App. 2012)

Opinion

No. 2D09–4385.

04-04-2012

Leo Richard BERUBE, Appellant, v. STATE of Florida, Appellee.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

Prior report: 2009 WL 3874697.

ALTENBERND, Judge.

Leo Richard Berube appeals his judgment and life sentence for second-degree murder. This court reversed an earlier judgment and sentence and remanded the case for a new trial. See Berube v. State, 5 So.3d 734, 736 (Fla. 2d DCA 2009). We affirm the new judgment and sentence in all respects. We write only to certify that this decision conflicts with Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), concerning the jury instruction on the lesser included offense of manslaughter. For the reasons set forth in this court's decision in Daniels v. State, 72 So.3d 227, 230 (Fla. 2d DCA 2011), this jury instruction did not constitute fundamental error.

Affirmed; conflict certified.

SILBERMAN, C.J., and WALLACE, J., Concur.