Gary Cannon v. State

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011 GARY JAMEL CANNON, JR., Appellant, v. Case No. 5D10-4368 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed November 4, 2011 Appeal from the Circuit Court for Volusia County, Margaret Hudson, Judge. James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. Gary Jamel Cannon, Jr., appeals his conviction on the charge of attempted second-degree murder, with special jury findings that he actually possessed and discharged a firearm while committing the crime.1 His sole argument on appeal is that the jury instruction on the lesser included offense of attempted voluntary manslaughter 1 Cannon was charged with attempted first-degree premeditated murder. constituted fundamental error. We agree and reverse, remanding for a new trial on the charge of attempted second-degree murder. See Burton v. State, --- So. 3d ----, 2011 WL 1326258 (Fla. 5th DCA 2011). As in Burton, we certify that this decision expressly and directly conflicts with the Fourth District's decision in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So. 3d 1262 (Fla. 2011). REVERSED and REMANDED; CONFLICT CERTIFIED. GRIFFIN, TORPY and LAWSON, JJ., concur. 2

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