NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

TYREE GLAND, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D10-3767 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed June 5, 2015. 

Appeal from the Circuit Court for Pinellas 

County; Philip J. Federico, Judge. 

Charles E. Lykes, Jr., Clearwater, for 

Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Elba Caridad MartinSchomaker, and Anne Sheer Weiner, 

Assistant Attorneys General, Tampa, for 

Appellee. 

ON REMAND FROM THE SUPREME COURT OF FLORIDA 

DAVIS, CHARLES A., Senior Judge. 

 On June 24, 2010, Tyree Gland was adjudicated guilty of second-degree 

murder and delinquent in possession of a firearm. He was sentenced to life in prison for 

the murder charge and to a concurrent fifteen-year sentence on the firearm charge. 
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This court affirmed his convictions and sentences by opinion issued October 5, 2011. 

Gland v. State, 72 So. 3d 216 (Fla. 2d DCA 2011). 

 On June 11, 2014, the Florida Supreme Court partially quashed our 

opinion and remanded the case to this court for reconsideration and application of 

Haygood v. State, 109 So. 3d 735 (Fla. 2013), to one of the issues raised by Mr. Gland. 

Gland v. State, 145 So. 3d 824 (Fla. 2014) (table decision). 

 The issue we must now reconsider involves the giving of the standard jury 

instruction for manslaughter by act that was determined to be erroneous in State v. 

Montgomery, 39 So. 3d 252 (Fla. 2010).1 We previously affirmed Mr. Gland's conviction 

and sentence for second-degree murder. In doing so, we cited opinions that are no 

longer good law in light of Haygood, 109 So. 3d 735. Having now reconsidered the 

facts of the instant case in light of Haygood and the Florida Supreme Court's recent 

opinion in Griffin v. State, 160 So. 3d 63 (Fla. 2015), we reverse Mr. Gland's judgment 

and sentence. 

 Mr. Gland's second-degree murder charge stems from the shooting death 

of Deandre Brown, a pedestrian who was present for the culmination of a series of 

altercations that occurred over the course of one night in the streets of St. Petersburg. 

At trial, Mr. Gland raised a defense of misidentification; he did not deny that the victim 

died of a gunshot, but he maintained that he was not there or was not the one who fired 

the fatal shot. 

 1In his original appeal, Mr. Gland raised four issues. Our prior opinion 

affirmed two of the issues without discussion and explained this court's reasoning in 

affirming the other two issues, one of which is the subject of our current review. We do 

not further address the other three issues raised by Mr. Gland on appeal as they were 

fully addressed by our earlier opinion. See Gland, 72 So. 3d 216. 
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 At the conclusion of trial, Mr. Gland requested that the jury be instructed 

on the lesser included charge of manslaughter. The trial court granted his request and 

gave standard instructions on both manslaughter by act and manslaughter by culpable 

negligence. It is undisputed that the standard instruction for manslaughter by act given 

at Mr. Gland's trial contained erroneous language that required a jury finding that the 

defendant intentionally caused the death of the victim. Nevertheless, we previously 

affirmed Mr. Gland's conviction because we concluded that the fact that the 

manslaughter by culpable negligence instruction also was given sufficiently overcame 

the error in the manslaughter by act instruction. But in Haygood, the Florida Supreme 

Court has since concluded that the giving of the culpable negligence instruction is 

insufficient to cure the fundamental nature of the error unless the facts of a case support 

the giving of both instructions. 109 So. 3d at 741. 

 Following Haygood, the supreme court issued Griffin, 160 So. 3d 63, in 

which the State argued that the erroneous intent language in the instruction on 

manslaughter by act was not harmful where the appellant's sole defense at trial was 

mistaken identity and the issue of the intent of the actual perpetrator was not contested 

by the defendant at trial. The supreme court rejected this argument, concluding as 

follows: 

In the present case, other than the fact that [the victim] was 

shot, Griffin did not concede any other elements of the crime 

charged; he simply contested his identity as the perpetrator. 

. . . Thus, we conclude that intent remained a matter that 

was pertinent or material to what the jury must consider in 

order to convict Griffin of the crime charged or a lesser 

included offense, notwithstanding his claim of 

misidentification. 

Id. at 69. 
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 Although the facts of Griffin are somewhat different than those in the 

instant case, the reasoning applied in Griffin compels the same result here where Mr. 

Gland too challenged only his identity as the perpetrator but did not concede any other 

elements of the charged offense. We therefore conclude that the trial court committed 

fundamental error in giving the standard jury instruction on the lesser included offense 

of manslaughter by act. Mr. Gland's defense did not remove the intent issue from the 

jury's consideration, and the giving of the instruction on manslaughter by culpable 

negligence was not sufficient to correct the error. See Haygood, 109 So. 3d at 741. 

Accordingly, we reverse Mr. Gland's conviction for second-degree murder and remand 

for new trial on this charge. 

 Reversed and remanded. 

ALTENBERND and WALLACE, JJ., Concur.