MICHAEL D. JOHNSON, v. STATE OF FLORIDA

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MICHAEL D. JOHNSON, Appellant, v. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D12-3748 STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed October 25, 2013. An appeal from the Circuit Court for Duval County. Tyrie W. Boyer, Judge. Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, FL, for Appellant. Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, FL, for Appellee. PER CURIAM. Appellant, Michael D. Johnson, appeals his conviction and sentence for attempted second-degree murder. As properly conceded by the State, fundamental error occurred during the proceedings when the jury was read the attempted voluntary manslaughter by act instruction disapproved of in State v. Montgomery. 39 So. 3d 252, 256 (Fla. 2010) ( (Defendant) intentionally caused the death of (victim). ) (quoting Fla. Std. Jury Instr. (Crim.) 7.7 (2006)). See also Williams v. State, -- So. 3d --, 38 Fla. L. Weekly S99 (Fla. Feb. 14, 2013) (extending Montgomery to jury instruction on attempted voluntary manslaughter by act). We therefore reverse Appellant s conviction and sentence for attempted second-degree murder and remand to the trial court for a new trial on that count. We affirm Appellant s remaining conviction and sentence for possession of a firearm by a convicted felon. AFFIRMED in part, REVERSED in part and REMANDED. VAN NORTWICK, CLARK, and OSTERHAUS, JJ., CONCUR. 2

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