Justia.com Opinion Summary: Defendant sought review of the decision of the Third District Court of appeal in Solano v. State on the ground that it expressly and directly conflicted with a decision of the Court in State v. Montgomery. Having issued its decision in Solano one day before the court issued its opinion in Montgomery, the district court did not have the benefit of considering Montgomery. Accordingly, the court accepted jurisdiction and granted defendant's petition for review.
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Supreme Court of Florida
____________
No. SC10-1350
____________
MYNOR SOLANO,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[October 27, 2011]
LABARGA, J.
Mynor Solano seeks review of the decision of the Third District Court of
Appeal in Solano v. State, 35 So. 3d 930 (Fla. 3d DCA 2010), on the ground that it
expressly and directly conflicts with a decision of this Court, State v. Montgomery,
39 So. 3d 252 (Fla. 2010), on a question of law. We have jurisdiction. See art. V,
§ 3(b)(3), Fla. Const.
In State v. Montgomery, 39 So. 3d 252 (Fla. 2010), we held that because
defendant Montgomery, who was convicted of second-degree murder, was entitled
to an accurate jury instruction on the necessarily lesser included offense of
manslaughter by act, the use of the then-standard jury instruction on manslaughter
by act constituted fundamental reversible error in his case because it erroneously
required the jury to find that the defendant intentionally caused the death of the
victim. We then affirmed the district court’s reversal of Montgomery’s conviction
for second-degree murder.
Solano seeks review in this Court on the grounds that the district court’s
decision in his case conflicts with our decision in Montgomery. Having issued its
decision in Solano one day before we issued our opinion in Montgomery, the
district court did not have the benefit of considering Montgomery. Accordingly,
we accept jurisdiction and grant Solano’s petition for review. The decision under
review is quashed, and this matter is remanded to the Third District Court of
Appeal for reconsideration upon application of our decision in Montgomery.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Third District - Case No. 3D07-3210
(Dade County)
Carlos J. Martinez, Public Defender, and Andrew M. Stanton, Assistant Public
Defender, Eleventh Judicial Circuit, Miami, Florida,
-2-
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau
Chief, and Douglas J. Glaid, Assistant Attorneys General, Miami, Florida,
for Respondent
-3-
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