IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



ANGEL MANUEL NIEVES,                )
                                    )
           Appellant,               )
                                    )
v.                                  )                  Case No. 2D08-3809
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed August 8, 2014.

Appeal from the Circuit Court for Lee
County; Thomas S. Reese, Judge.

Lee Hollander of Law Offices of Hollander
and Hanuka, Naples, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Ha Thu Dao, Assistant
Attorney General, Tampa, for Appellee.


              ON REMAND FROM THE SUPREME COURT OF FLORIDA

KHOUZAM, Judge.

              Upon remand from the Florida Supreme Court, we reconsider Angel

Manuel Nieves' conviction for second-degree murder in light of the subsequent decision

in Haygood v. State, 

(Fla. 2013). Because the giving of the erroneous

instruction on the lesser included offense of manslaughter by act did not pertain to a

disputed element of the offense, we conclude that no fundamental error occurred and

therefore affirm.
             In 2008, Nieves was convicted by a jury of second-degree murder and

sentenced to life in prison. Without objection, his jury was given the then-standard

instructions which were later found to be fundamentally erroneous in State v.

Montgomery, 

(Fla. 2010) (Montgomery II). The jury was also instructed

on manslaughter by culpable negligence.

             But the Florida Supreme Court's decision in Montgomery II had not yet

been penned when Nieves filed his direct appeal. At that time, this court had concluded

that the instructions were not fundamentally erroneous and had certified conflict with the

First District's contrary opinion in Montgomery v. State, 

(Fla. 1st DCA

2009) (Montgomery I). See Zeigler v. State, 

, 1245-46 (Fla. 2d DCA

2009), quashed, 

(Fla. 2011). Based on Zeigler, this court affirmed

Nieves' judgment and sentence on the grounds that the instruction was not

fundamentally erroneous and that his case was distinguishable from Montgomery I

because Nieves' jury was also instructed on manslaughter by culpable negligence.

Nieves v. State, 

, 692 (Fla. 2d DCA 2009).

             After the supreme court issued its opinion in Montgomery II finding the

instruction fundamentally erroneous, it ordered the State to show cause why the opinion

in Nieves' case should not be quashed and remanded for reconsideration in light of this

development. Nieves moved the supreme court to retain jurisdiction until it had decided

the related issue of whether the instruction on manslaughter by culpable negligence

negated the error caused by the fundamentally erroneous instruction. The supreme

court granted the request and stayed proceedings in Nieves' case.




                                           -2-
              Thereafter, the supreme court issued its opinion in Haygood. It held that

"giving the erroneous manslaughter by act instruction . . . is also fundamental error even

if the instruction on manslaughter by culpable negligence is given where the evidence

supports manslaughter by act but does not support culpable negligence and the

defendant is convicted of second-degree 

. Consequently,

the supreme court quashed this court's opinion in Nieves and remanded for

reconsideration in light of Haygood. Nieves v. State, 

(Fla. 2014)

(unpublished table decision).

              In Haygood, the supreme court observed that it has "long held that

fundamental error occurs in a jury instruction where the instruction pertains to a

disputed element of the offense and the error is pertinent or material to what the jury

must consider to 

. The court "reiterated . . . that it is

fundamental error to give a standard jury instruction that contains an erroneous

statement as to an element of the crime which is disputed." 

(citing

Reed v. State, 

, 369 (Fla. 2002)). Where the defendant concedes the

facts of the crime, arguing only that it was committed by somebody else, no such

dispute arises. See Battle v. State, 

, 89 (Fla. 2005) (citing State v. Delva,

, 645 (Fla. 1991)); see also Morton v. State, 

, 324 (Fla.

3d DCA 1984) ("[W]here the only real issue put to the jury for its determination was

whether the defendant was the person who committed the conceded [crime], it is

inconceivable that the failure to instruct the jury on the elements of [the crime]

prejudiced the defendant or that such an instruction would have made any difference in

the jury's verdict."). This rule has been specifically applied to the erroneous



                                            -3-
manslaughter instruction. See Griffin v. State, 

, 90 (Fla. 2d DCA 2013)

("Because there was no dispute regarding the element of intent, the erroneous jury

instruction on the intent element of the lesser included offense of manslaughter did not

constitute fundamental error."), review granted, No. SC13-2450, 

(Fla.

Feb. 17, 2014).

              Here, Nieves conceded at trial that the victim was murdered but claimed

that somebody else did it. His counsel argued during closing that the physical evidence

indicated that Mr. Adams, the other man at the scene of the crime, was "the person who

killed her. He is the one that cut her throat." Instead of disputing intent, Nieves plainly

argued that "Mr. Adams is the perpetrator of this crime." Under these circumstances,

because the element of intent was not in dispute at trial, the erroneous manslaughter

instruction did not constitute fundamental error and we therefore affirm.

              Affirmed.



WALLACE and MORRIS, JJ., Concur.




                                            -4-