### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

NELSENN SIMON
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No s . 4D 08

- 2903 and 4D08

- 2904

[ February 11, 2015 ]

ON REMAND FROM THE FLORIDA SUPREME COURT

Consolidated a ppeal s from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Joel T. Lazarus , Judge; L.T. Case No s

. 05

- 007064 CF10A and 07

- 006972 CF10A

.

Carey Haughwout, Public Defender, and Peggy Natale , Assistant Public Defender, West Palm Beach, for a ppellant.

Pamela Jo Bondi , Attorney General, Tallahassee, and Sue

- Ellen Kenny

, Assistant Attorney General, West Palm Beach, for appellee.

P ER C URIAM

.

The defendan t , Nelsenn Simon, appealed from a conviction and

sentence for second degree murder raising, among other issues, that the trial court gave a fundamentally erroneous jury instruction on the lesser included offense of manslaughter because it included the same intent element of the greater offense of second degree murder. His conviction

was affirme d based on this court’ s opinion in Singh v. State, 36 So. 3d 848 (Fla. 4th DCA 2010)

. Simon v. State , 38 So. 3d 793, 795 (Fla. 4th DCA 2010). In Singh

, where the defendant was prosecuted for first degree

murder and convicted of the lesser included offens e of second degree

murder

, we held that the trial court did not fundamentally err in giving the standard jury instruction on manslaughter , which required a jury finding

that the defendant “intentionally caused the death” of the victim or that

the death of the victim “was caused by the culpable negligence” of the

defendant

. 36 So. 3d at 851.2

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court issued its opinion in Haygood v. State, 109 So. 3d 735 (Fla. 2013), which effectively quashed our decision in Singh. In Haygood, the Court held:

that giving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable ne gligence of the defendant.

Id. at 743. The Court, by order, then accepted jurisdiction o f this case, quashed this court’ s opinion, and remanded the matter to this court for reconsideration upon application of Haygood. Simon v. State

, SC10

- 1684,

2015 WL 128294 (Fla. Jan. 7, 2015)

.

We need not consider supplemental arguments on remand because t he evidence introduced at trial leaves no reasonable possibility for a finding

“ that the death occurred due to the culpable negligence of the defendant

. ”

One witne ss to the incident testified that the victim said to the defendant

, “Whenever you saw me, you would fight with me

, ” and that t he defendant responded by stabbing the victim with a broken bottle. Another witness testified that, days before the incident, the defendant informed him he was planning to kill the victim.

In light of Haygood, we hold that the trial court fundamental ly erred in giving the standard jury instr uction on manslaughter by act. W e reverse and remand for a new trial on the charge of second degree murder

.

Reversed and remand ed with instructions

.

S TEVENSON

, C IKLIN and G ERBER
, JJ., concur.

* * *