Barros-Dias v. State
Annotate this Case
Download PDF
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FAGNER BARROS-DIAS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
)
)
)
)
)
)
)
)
)
)
Case No. 2D08-1074
Opinion filed April 9, 2010.
Appeal from the Circuit Court for
Hillsborough County; Daniel H. Sleet,
Judge.
James Marion Moorman, Public Defender,
and Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Richard M. Fishkin,
Assistant Attorney General, Tampa, for
Appellee.
VILLANTI, Judge.
Fagner Barros-Dias appeals his judgment and sentence for seconddegree murder. He argues that the trial court erred in instructing the jury on the lesserincluded offense of manslaughter because the standard jury instruction given at his trial
improperly added an additional element of "intent to kill" to the crime of manslaughter.
Because he did not object to it at trial, Barros-Dias argues that the instruction was
fundamentally erroneous. We affirm but certify conflict.
This court recently held that the standard jury instruction for manslaughter
which was in effect at the time of Barros-Dias' trial1 in 2007 was not fundamentally
erroneous. See Zeigler v. State, 18 So. 3d 1239, 1245-46 (Fla. 2d DCA 2009).
However, the First District in Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st
DCA Feb. 12, 2009), review granted, 11 So. 3d 943 (Fla. 2009), concluded that the
same standard instruction was fundamentally erroneous.2 Accordingly, we affirm
Barros-Dias' conviction and sentence and, as we did in Zeigler, certify conflict with
Montgomery.
Judgment and sentence affirmed; conflict certified.
WALLACE and LaROSE, JJ., Concur.
1
The standard manslaughter jury instruction at issue in the case is no
longer the standard instruction. It was modified by the supreme court in December
2008 and now reads: "In order to convict of manslaughter by intentional act, it is not
necessary for the State to prove that the defendant had a premeditated intent to cause
death, only an intent to commit an act which caused death."
2
We note that, unlike in Zeigler and Montgomery, the jury in this case was
also instructed on the offense of manslaughter by culpable negligence.
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
