Cooper v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2005
CLAYTON COOPER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D04-442
[July 20, 2005]
ON MOTION FOR REHEARING
SHAHOOD, J.
We grant rehearing, withdraw our previously issued opinion and
substitute the following in its place.
Appellant was charged with attempted first degree murder. Following a
jury trial, he was convicted of attempted second degree murder. He
contends it was fundamental error for the trial court to give the following,
unobjected-to jury instruction:
In order to convict – to be guilty of attempted manslaughter, it is not
necessary for the State to prove that the defendant has a premeditated
intent to cause death, but, the State must prove that the actions of Mr.
Cooper amount to culpable negligence.
Now culpable negligence has to do with the obligation and duty that
each of us has to act reasonably towards others. If there is a violation
of that duty; without any conscious intention to harm; we call that
negligent. In other words, that’s, if you drive your car in a careless,
negligent manner and cause an accident, you didn’t intend any harm.
We call that negligence.
But that’s not what we’re talking about here. We’re talking about
culpable negligence. That’s more than failure to use ordinary care for
others. In order for negligence to be culpable, it must be gross and
flagrant.
....
We say the State has the burden of proof of showing Mr. Cooper
committed an act of culpable negligence. That’s what we mean. Then,
the punishment is greater for attempted voluntary manslaughter, if in
the course of committing that, there was some kind of weapon or
firearm.
Attempted manslaughter by culpable negligence is a nonexistent crime.
See State v. Brady, 685 So. 2d 984 (Fla. 5th DCA 1977); Taylor v. State ,
444 So. 2d 931 (Fla. 1983). Appellant argues that it is fundamental error
to instruct the jury that it may find the defendant guilty of the crime of
attempted manslaughter by culpable negligence. See Reid v. State , 656
So. 2d 191 (Fla. 1st DCA 1995).
The state distinguishes Reid on the basis that, in this case, appellant
was not convicted of the non-existent crime and the conviction of
attempted second degree murder, a higher degree of crime, is supported
by the record. See Murray v. State , 491 So. 2d 1120 (Fla. 1986)(holding
that although it was error to instruct on manslaughter by culpable
negligence, the error did not require a new trial because there was
sufficient evidence to support the conviction). We agree.
Because there was sufficient evidence to support the higher degree of
crime of which appellant was convicted, and the appellant has cited no
authority that this instruction was fundamental error under these
circumstances, we affirm.
Affirmed.
KLEIN and TAYLOR, JJ., concur.
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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Stephen A. Rapp, Judge; L.T. Case No. 01-14398 CFA02.
Carey Haughwout, Public Defender, and Louis G. Carre s, Assistant
Public Defender, West Palm Beach, for appellant.
-2-
Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
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