Berube v. State

ON REMAND FROM THE SUPREME COURT OF FLORIDA

ALTENBERND, Judge.

Upon remand from the Florida Supreme Court, we reconsider Leo Richard Be-rube’s conviction for second-degree murder in light of the subsequent decision in Daniels v. State, 121 So.3d 409 (Fla.2013). Because the giving of the erroneous instruction on the lesser-included offense of manslaughter by act unquestionably did not pertain to a disputed element of that offense, we conclude that Mr. Berube has not established that the error in the instruction was harmful. Having failed to establish this first prong of a fundamental error…