JOHNSON v. STATE

No. 2D08-5630.

34 So.3d 249 (2010)

Herbert Tyrone JOHNSON, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Second District.

May 14, 2010.


Attorney(s) appearing for the Case

James Marion Moorman, Public Defender, and Richard Sanders, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.


WHATLEY, Judge.

Herbert Johnson appeals his judgment and sentence for second-degree murder with a firearm, arguing that the trial court committed fundamental error when it gave the standard jury instruction on the necessarily lesser-included offense of manslaughter by act. We are required to reverse based on the Florida Supreme Court's recent decision in State v. Montgomery, ___ So.3d ___, ___ (Fla.2010), in which the court held that the use of the standard...

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