culpable negligence instruction in Florida

2015See Smith v. State, 145 So.3d 972 (Fla. 1st DCA 2014) (holding that where there was no evidence from which the jury could find the defendant guilty of the lesser included offense of *83 manslaughter by culpable negligence, Haygood is controlling); Hill v. State, 124 So.3d 296, 302 (Fla. 2d DCA 2013) (holding that although the evidence was sufficient to sustain the jury’s verdict for attempted second-degree murder, “the jury was deprived of the ability to decide whether [Mr. Hill’s] lack of intent to kill, when considered with all the other evidence, fit within the elements of the offense of [a

2015See Smith v. State, 145 So. 3d 972 (Fla. 1st DCA 2014) (holding that where there was no evidence from which the jury could find the defendant guilty of the lesser included offense of manslaughter by culpable negligence, Haygood is controlling); Hill v. State, 124 So. 3d 296, 302 (Fla. 2d DCA 2013) (holding that although the evidence was sufficient to sustain the jury's verdict for attempted second-degree murder, “the jury was deprived of 3 the ability to decide whether [Mr. Hill's] lack of intent to kill, when considered with all the other evidence, fit within the elements of the offense of [a

2015See Smith v. State, 145 So.3d 972 (Fla. 1st DCA 2014) (holding that where there was no evidence from which the jury could find the defendant guilty of the lesser included offense of *83 manslaughter by culpable negligence, Haygood is controlling); Hill v. State, 124 So.3d 296, 302 (Fla. 2d DCA 2013) (holding that although the evidence was sufficient to sustain the jury’s verdict for attempted second-degree murder, “the jury was deprived of the ability to decide whether [Mr. Hill’s] lack of intent to kill, when considered with all the other evidence, fit within the elements of the offense of [a

2015See Smith v. State, 145 So. 3d 972 (Fla. 1st DCA 2014) (holding that where there was no evidence from which the jury could find the defendant guilty of the lesser included offense of manslaughter by culpable negligence, Haygood is controlling); Hill v. State, 124 So. 3d 296, 302 (Fla. 2d DCA 2013) (holding that although the evidence was sufficient to sustain the jury's verdict for attempted second-degree murder, “the jury was deprived of 3 the ability to decide whether [Mr. Hill's] lack of intent to kill, when considered with all the other evidence, fit within the elements of the offense of [a

2012See Pena v. State, 901 So.2d 781, 787 (Fla.2005) (“[I]f the trial court errs in failing to give a proper instruction on a lesser offense, and the lesser offense is more than two steps removed from the offense for which the defendant is convicted, then the error is subject to a harmless error analysis.”).

2012As our supreme court has explained, “When the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” Pena v. State, 901 So.2d 781, 787 (Fla.2005).

2018On these facts, we agree with Marshall that the evidence in this case “does not reasonably support a finding that [the victim’s] death occurred due to culpable negligence of the defendant.” Id. at 741 (finding the culpable negligence instruction was not warranted where the defendant head- butted, choked and elbowed the victim, causing subdural bleeding and leading to 10 eventual death); Kerney v. State, 217 So. 3d 138 , 143 n.4 (Fla. 3d DCA 2017) (finding the evidence introduced at trial that the defendant strangled the victim to death did not reasonably support a finding that the victim’s dea

2015But in Hay-good, 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 .

2022See, e.g., Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA 2016) (holding that culpable negligence is reserved for “only the most egregious conduct, done either willfully or with criminal culpability” (quoting Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000))); Jones v. State, 912 So. 2d 686, 688 (Fla. 1st DCA 2005) (holding that culpable negligence is “that degree of negligence that is so egregious, and flagrant, it would support a charge of manslaughter in case of death”); Logan v. State, 592 So. 2d 295, 299 (Fla. 5th DCA 1991) (“Culpable negligence depends on the extreme characte

2022See, e.g., Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA 2016) (holding that culpable negligence is reserved for “only the most egregious conduct, done either willfully or with criminal culpability” (quoting Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000))); Jones v. State, 912 So. 2d 686, 688 (Fla. 1st DCA 2005) (holding that culpable negligence is “that degree of negligence that is so egregious, and flagrant, it would support a charge of manslaughter in case of death”); Logan v. State, 592 So. 2d 295, 299 (Fla. 5th DCA 1991) (“Culpable negligence depends on the extreme characte

2022See, e.g., Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA 2016) (holding that culpable negligence is reserved for “only the most egregious conduct, done either willfully or with criminal culpability” (quoting Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000))); Jones v. State, 912 So. 2d 686, 688 (Fla. 1st DCA 2005) (holding that culpable negligence is “that degree of negligence that is so egregious, and flagrant, it would support a charge of manslaughter in case of death”); Logan v. State, 592 So. 2d 295, 299 (Fla. 5th DCA 1991) (“Culpable negligence depends on the extreme characte

2022See, e.g., Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA 2016) (holding that culpable negligence is reserved for “only the most egregious conduct, done either willfully or with criminal culpability” (quoting Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000))); Jones v. State, 912 So. 2d 686, 688 (Fla. 1st DCA 2005) (holding that culpable negligence is “that degree of negligence that is so egregious, and flagrant, it would support a charge of manslaughter in case of death”); Logan v. State, 592 So. 2d 295, 299 (Fla. 5th DCA 1991) (“Culpable negligence depends on the extreme characte

2017See Cubelo, 41 So.3d at 267-68 (“We find, as the First District found in Salonko, that the instant case is factually distinguishable from Montgomery as the Montgomery jury did not receive an instruction on culpable negligence as did the jury in the instant case....

2017By that time, notices to invoke jurisdiction in the Florida Supreme Court had already been filed in both Salonko (April 29, 2010) and Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010) (September 7, 2010), seeking review of determinations from decisions determining that giving a culpable negligence instruction along with the erroneous manslaughter by act instruction in effect cured the manslaughter by act instruction error.

2017See Ramos, 89 So.3d at 1122 (recognizing that “[h]ad this been a single isolated incident—without the history; of [the caretaker’s] repeated indifference and inaction as to [the child’s] safety—it might fall short of a ‘gross and flagrant’ violation of a duty of care under a culpable negligence standard”).

2017Cubelo v. State, 137 So.3d 1193, 1193 (Fla. 3d DCA 2014).

2016The defendant “must show a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences.” Id. (quoting State v. Greene, 348 So.2d 3, 4 (Fla.1977)); see also Fla. Std.

2013In its Response to this Petition, the State acknowledges that the Petitioner’s sole issue on direct appeal was whether the pre-Montgomery manslaughter-by-act instruction was fundamental error and, if so, whether that defect was cured by giving the manslaughter by culpable negligence instruction, 7 and correctly points out that the De La Hoz case was not in the Haygood “pipeline.” To have been in the Haygood “pipeline,” the case must have been stayed or pending on appeal when Haygood was decided in February, 2013. 8 See Mitchell v. Moore, 786 So.2d 521, 530 (Fla.2001) (recognizing that the “pip

2002See Como Oil Co. v. O'Loughlin, 466 So.2d 1061, 1062 (Fla. 1985). [8] On appeal, Mr. Oliver has made an argument that he is a supervisor entitled to be judged by the culpable negligence standard.