Keith Eric Agee v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2023-3321 _____________________________ KEITH ERIC AGEE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Coleman L. Robinson, Judge. September 2, 2026 PER CURIAM. AFFIRMED. ROWE and BILBREY, JJ., concur; WINOKUR, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ WINOKUR, J., concurring. Keith Eric Agee appeals his conviction for first-degree premeditated murder. Agee’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We ordered Agee’s court- appointed counsel to brief the following issues: 1) Did the trial court err by failing to instruct the jury that voluntary manslaughter is the intentional killing of another, mitigated by a sudden and sufficient provocation like heat of passion? and 2) Did the trial court err by failing to instruct the jury that heat of passion provides a partial defense that can reduce an intentional killing from murder to manslaughter? Fla. R. App. P. 9.140(g)(2)(A). Agee’s counsel filed a supplemental brief, raising both issues as claims of fundamental error. I agree that affirmance of Agee’s conviction is warranted. However, this appeal highlights two important features of Florida’s homicide laws that deserve careful discussion: first, that manslaughter is a hybrid offense, containing both statutory and common law elements; and second, that heat of passion is both a partial, affirmative defense to murder as well as an element of voluntary manslaughter. Unfortunately, these two features are often misunderstood. As a result, Florida courts have inconsistently applied the law of manslaughter. Based upon a review of the cases, it appears that, while older cases were more faithful to the common law, newer cases have strayed from the established path. In the opinion that follows, I examine over one hundred years of cases to discern the trendline and identify the outliers. See The Honorable Andrew Oldham, Circuit Judge of the Fifth Judicial Circuit, 2025 Joseph Story Distinguished Lecture, (Heritage Foundation, Oct. 24, 2025). I address Agee’s claims of fundamental error by applying two presumptions. First, voluntary manslaughter is an intentional killing of another mitigated by a sufficient and sudden provocation, such as heat of passion. Second, heat of passion is a partial, affirmative defense that lowers an intentional or depraved mind killing from murder to manslaughter. Even with these presumptions, however, Agee fails to establish fundamental error under the facts of the case. 2  I A Brooklyn Sims, the victim in this case, shared a daughter (“K”) with Agee. Sims was 18 years old at the time of her death in August 2023. She lived in Citronelle, Alabama and worked for a company that conducted inventories at Home Depot stores. Agee lived in Calvert, Alabama. Calvert is about two hours from Pensacola. Agee admitted at trial that he drove from Calvert to Pensacola, where he shot and killed Sims while she was working inside a Home Depot. He believed he contracted gonorrhea from Sims. Sheila Agee is the defendant’s mother. She also lived in Calvert, but at her own residence. She and Sims worked at the same company. Sheila drove Sims to Pensacola on the day of the murder. Sheila texted several inflammatory messages to her son that day, notably one stating that he would be a “m***** -f****** bitch” if he did not kill Sims. Sheila also suggested to Agee that he should drive to Pensacola to kill Sims, rather than wait until she and Sims returned to Alabama. Sheila was convicted as a principal to first-degree premeditated murder, for which she is serving a life sentence. On August 8, 2023, Agee began experiencing symptoms and was tested for a sexually transmitted disease. On August 11, Agee’s doctor informed him that he tested positive for gonorrhea. Agee felt “enraged, betrayed, [and] hurt” when he learned about the positive test result. He left work, drove straight home, left the car running, retrieved his firearm, and ran back out. At 10:37 a.m., Agee texted his mother, “She gave me gonorea [sic].” Agee confirmed with his mother that Sims was still working with her at the Home Depot in Pensacola. Agee then texted his mother: “Y’all come back this evening?” She responded: “Yep.” Agee replied: “Ok I’ll be waiting on y’all” in Citronelle, Alabama, which is roughly fifteen miles from Calvert. 3  Agee’s mother later suggested that Agee drive to Pensacola to shoot Sims. Throughout the morning Agee and his mother texted; Agee expressing anger at Sims and his mother making suggestions to Agee to facilitate the murder. The messages show that Agee’s anger never abated before he reached Pensacola, and that his mother encouraged the shooting, even mocking Agee if he did not shoot Sims. It took Agee approximately one and a half hours to drive to Pensacola. Agee arrived at the Home Depot and entered the store. Agee stated that he “was enraged until [he] arrived on aisle 52.” He had been “hot the whole way there, driving, mad.” Seeing Sims, however, “kind of brought [him] back to earth.” While she was sitting on the floor in aisle 53/52 counting the inventory, Agee walked past the aisle and turned around. Agee then tapped Sims on the shoulder and told her that she gave him “something.” According to Agee, Sims said: “not this again.” Sims then turned around and started to walk away from Agee. Agee felt “hurt, betrayed, mad.” He had “never been so mad in [his] life.” Agee then pulled a firearm from his waistband and shot Sims. Agee shot Sims approximately 15 times but claimed that he did not remember how many times he shot her. At 1:44 p.m., Agee called 9-1-1 to turn himself in. During the call, Agee said that he could not breathe. An officer with the Pensacola Police Department apprehended Agee. Agee was not wearing a shirt, and his pants “appeared to be wet.” Agee cooperated with the officers who participated in the arrest. B At trial, “heat of passion” was the sole defense and the only disputed issue. During a pretrial colloquy, Agee expressly indicated his agreement with counsel’s strategy to pursue guilt on a lesser offense. During opening statements, Agee’s counsel told the jury: “I don’t expect to contest a lot of the facts and the evidence that the State puts on.” True to his word, Agee admitted during direct examination that he intentionally killed Sims. Agee even admitted that he acted out of revenge. During closing argument, Agee’s counsel conceded that “[t]he facts aren’t really in dispute 4 here.” Agee’s counsel argued to the jury that heat of passion reduced the charged crime from first-degree, premeditated murder to a lesser offense. Apparently rejecting Agee’s arguments, the jury found Agee guilty of first-degree, premeditated murder. Agee raises two claims of fundamental error. First, Agee argues that the jury instruction on manslaughter erroneously omitted a definition of the common law crime of voluntary manslaughter. According to Agee, because the jury was not told that voluntary manslaughter includes intentional and “depraved mind” killings, the jury “could only conclude that, despite heat of passion negating premeditation and depraved mind, they could not convict [him] of [the lesser offense of] manslaughter.” In other words, the lack of a voluntary manslaughter instruction caused the jury to reject manslaughter because that offense, as defined by the trial court, failed to capture the severity of Agee’s intentional killing. Agee rejects any reliance on the jury pardon doctrine. Instead, Agee highlights that manslaughter is a residual offense defined by what it is not—neither murder nor excusable or justifiable homicide. Therefore, a jury must understand murder to understand manslaughter. Agee argues that the converse is also true: a jury must understand manslaughter to understand murder. Second, Agee argues that the trial court committed fundamental error “by failing to instruct the jury that heat of passion provides a partial defense that can reduce an intentional killing from murder to manslaughter.” In other words, if the evidence supports heat of passion as an affirmative defense, then the trial court must instruct the jury that the State bears the burden of disproving heat of passion, in other words, disproving voluntary manslaughter, beyond a reasonable doubt. II In Florida, the crime of manslaughter is a hybrid offense, combining both common law and statutory elements. See Roddenberry v. State, 11 So. 2d 582, 584 (Fla. 1942) (referring to “the common law and statutory definitions of the offense” of manslaughter); see also Bautista v. State, 863 So. 2d 1180, 1186 n.6 (Fla. 2003). 5  Section 782.07(1), Florida Statutes, defines the crime of manslaughter as the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification . . . and in cases in which such killing shall not be excusable homicide or murder[.]” § 782.07(1), Fla. Stat. Subsection (1) has remained virtually unchanged since 1892. See Rodriguez v. State, 443 So. 2d 286, 289–90 (Fla. 3d DCA 1983). Interpreting the 1892 amendments shortly after their passage, the Supreme Court of Florida stated: “[T]here is nothing in the definition of manslaughter to exclude from its provisions all intentional homicides, or to include within the definition of murder all intentional killings, unless the intention is so deliberate as to amount to a premeditated design.” Williams v. State, 26 So. 184, 186 (Fla. 1899). A few decades later, the Court defined manslaughter as “the killing of a human being by the act, procurement, or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder.” Rivers v. State, 78 So. 343, 344 (Fla. 1918). Because section 782.07 defines manslaughter as neither murder nor an excusable or justifiable homicide, the Supreme Court has characterized manslaughter as a process of “exclusion,” a process of “elimination,” and a “residual offense” that is “defined by what it is not.” See Stone v. State, 48 So. 996, 997 (Fla. 1909); see also Zow v. State, 70 So. 18, 19 (Fla. 1915); Hedges v. State, 172 So. 2d 824, 826 (Fla. 1965); Stockton v. State, 544 So. 2d 1006, 1008–09 (Fla. 1989). Put another way, the statutory elements of manslaughter include negative elements, that is, what manslaughter is not. Therefore, to understand manslaughter, a jury must also understand murder (as well as what constitutes an excusable or justifiable homicide). See Stone, 48 So. at 997; see also Zow, 70 So. at 19; Hedges, 172 So. 2d at 826; Stockton, 544 So. 2d at 1007–08. Ultimately, manslaughter is a “catch-all” category of homicides not serious enough to qualify as murder but not excusable or justifiable enough to be no crime whatsoever. LaFave, Wayne R., Substantive Criminal Law § 15.1 (3d ed.). Although section 782.07, Florida Statutes, identifies an actus reus, it does not specify the mens rea for manslaughters committed by act or procurement. The common law, then, fills that gap. See 6 § 2.01, Fla. Stat.; see also § 775.01, Fla. Stat.; Morgan v. State, 40 So. 828, 829 (Fla. 1906); Chicone v. State, 684 So. 2d 736, 741 (Fla. 1996) (superseded by statute on other grounds). Indeed, our Supreme Court recognized one hundred years ago that Florida’s manslaughter statute incorporates the common law. See Collins v. State, 102 So. 880, 882 (Fla. 1925). Sixty years after deciding Collins, the Court described its 1899 decision in Williams as recognizing “the distinction found in common law between voluntary and involuntary manslaughter.” Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983). And in 2003, the Court reiterated that the statutory definition of manslaughter incorporates the common law. See Bautista, 863 So. 2d at 1186 n.6; cf. Rodriguez, 443 So. 2d at 290 n.8. Thus, under section 782.07, Florida Statutes, and the incorporated common law, manslaughter comes in three forms: 1) Voluntary manslaughter (by act or procurement); 2) Involuntary manslaughter by act (or procurement); and 3) Involuntary manslaughter by culpable negligence. See Fortner v. State, 161 So. 94, 96 (Fla. 1935) (Brown, J., concurring); see also LaFave, Wayne R., Substantive Criminal Law § 15.4 (3d ed.). Rather than representing separate crimes, however, these three forms of manslaughter simply represent different ways to commit the same offense. See § 782.07(1), Fla. Stat.; see also LaFave, Wayne R., Substantive Criminal Law § 15.1, 15.4 n.3 (3d ed.). Voluntary manslaughter is the intentional killing of another, mitigated by a sudden and sufficient provocation like heat of passion. See Olds v. State, 33 So. 296, 299 (Fla. 1902); see also Fortner, 161 So. at 96 (Brown, J., concurring); LaFave, Wayne R., Substantive Criminal Law §15.2(a) (3d ed.). Some appellate courts view heat of passion as mitigation that reduces the crime from murder to manslaughter. See, e.g., Collins, 102 So. at 882; see also Febre v. State, 30 So. 2d 367, 369 (Fla. 1947) (quoting Collins); cf. LaFave, Wayne R., Substantive Criminal Law §15.2 (3d ed.). Under this view, heat of passion provides a partial justification for murder. See Whidden v. State, 59 So. 561, 561 (Fla. 1912); see also LaFave, Wayne R., Substantive Criminal Law §15.2(b) (3d ed.). Other decisions employ an apparent legal fiction 7 that heat of passion prevents a defendant from formulating the premeditation necessary for first-degree murder or the depravity required for second-degree murder. See, e.g., Disney v. State, 73 So. 598, 601 (Fla. 1916); see also Rivers, 78 So. at 345; State v. Sherouse, 536 So. 2d 1194, 1195 (Fla. 5th DCA 1989) (Cobb, J., concurring specially) (citing Williams, 26 So. at 186). Either way, heat of passion can provide a partial defense to both first-degree, premeditated murder and second-degree murder. See Villella v. State, 833 So. 2d 192, 195 (Fla. 5th DCA 2002) (citing Douglas); see also Taylor v. State, 316 So. 3d 420, 427 (Fla. 1st DCA 2021). In a common law system where the fixed sentence for murder was death, voluntary manslaughter provided a defendant with an opportunity to reduce the punishment (i.e., introduce guilt-phase mitigation). See Olds, 33 So. at 299; see also LaFave, Wayne R., Substantive Criminal Law §15.2(h) (3d ed.). Like voluntary manslaughter, involuntary manslaughter by act contains an intent element. However, the intent elements for the two crimes differ. Whereas voluntary manslaughter requires a specific intent to kill, involuntary manslaughter by act only requires a general intent to commit an unlawful act. See Bess v. State, 1 So. 2d 580, 581 (Fla. 1941). For this reason, involuntary manslaughter by act is often referred to as “misdemeanor manslaughter” or “unlawful act manslaughter.” See Rodriguez, 443 So. 2d at 290 n.8; see also Todd v. State, 594 So. 2d 802, 803 (Fla. 5th DCA 1992); LaFave, Wayne R., Substantive Criminal Law, §15.5(a) (3d ed.). While it requires a general intent to commit an unlawful act, involuntary manslaughter by act does not require the specific intent to commit homicide. See LaFave, Wayne R., Substantive Criminal Law § 15.5(a) (2d ed. 2003). Furthermore, despite the name “misdemeanor manslaughter,” involuntary manslaughter by act can include felonious acts that fail, for whatever reason, to serve as the underlying offense for felony murder. See LaFave, Wayne R., Substantive Criminal Law, §15.5(a) (3d ed.). Even though an intent to kill is not necessary, involuntary manslaughter by act contains a causation element that requires the State to prove that the defendant’s intentional act caused the victim’s death. See LaFave, Wayne R., Substantive Criminal Law, §15.5(b) (3d ed.); see, e.g., Tyus v. State, 845 So. 2d 318, 319 (Fla. 1st DCA 2003); see also Boler v. State, 678 So. 2d 8 319, 323 (Fla. 1996). A single punch fist fight resulting in death is a common example of involuntary manslaughter by act. See, e.g., Hall v. State, 951 So. 2d 91, 92 (Fla. 2d DCA 2007); see also Acosta v. State, 884 So. 2d 112, 113 (Fla. 2d DCA 2004); LaFave, Wayne R., Substantive Criminal Law, §15.5(d) (3d ed.). Involuntary manslaughter by culpable negligence is the killing of another by the act or omission of the defendant, with that act or omission 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; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them. Russ v. State, 191 So. 296, 298 (Fla. 1939) (citing Cannon v. State, 107 So. 360 (Fla. 1926)). Like voluntary manslaughter and involuntary manslaughter by act, involuntary manslaughter by culpable negligence includes a causation element. See LaFave, Wayne R., Substantive Criminal Law § 15.4(c) (3d ed.). Unlike voluntary manslaughter and involuntary manslaughter by act, however, involuntary manslaughter by culpable negligence does not require an intent to kill or an intent to commit an unlawful act. See Kent v. State, 43 So. 773, 774 (Fla. 1907). III In Taylor, the Supreme Court of Florida considered the following certified question: Is there a crime of attempted manslaughter under the statutes of the State of Florida? Taylor, 444 So. 2d at 933. The defendant there argued “that the crime of attempted manslaughter is a logical impossibility [because] a person cannot form an intent to commit an act by culpable negligence.” Id. In its decision on review, the Court faulted the appellate court for “fail[ing] to perceive the erroneous assumption 9 in appellant’s argument that manslaughter is necessarily an involuntary act.” Id. According to the Court, “[t]his has never been the case in Florida” because “[t]he crime of assault with intent to commit manslaughter was premised upon the fact that in Florida the crime of manslaughter includes certain types of intentional killings.” Id. (emphasis supplied). Citing its 1899 decision in Williams, the Court stated that it has “recognized the distinction found in common law between voluntary and involuntary manslaughter.” Taylor, 444 So. 2d at 934. Accordingly, attempted manslaughter is possible in situations where the crime would have been voluntary manslaughter had the victim died. Id. Even though the Court held that the crime of attempted voluntary manslaughter exists in Florida, and even though the Court held that the crime of attempted involuntary manslaughter by culpable negligence does not exist in Florida, the Court included language in its decision suggesting that the crime of attempted involuntary manslaughter by act exists in Florida. Id. In the years following its release, Taylor caused considerable confusion in the appellate courts. See Williams v. State, 40 So. 3d 72, 75 (Fla. 4th DCA 2010), decision quashed, 123 So. 3d 23 (Fla. 2013) (“[L]anguage from Taylor seems to have created some confusion about the elements of attempted manslaughter and the proper wording of a jury instruction on the charge.”). For instance, in Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987), the court attempted to follow Taylor but erroneously suggested that: (1) all manslaughters by act or procurement are voluntary manslaughter (i.e., intentional killings); and, (2) all involuntary manslaughters are killings by culpable negligence. See Barton, 507, So. 2d at 641, affirmed in part and quashed in part, State v. Barton, 523 So. 2d 152 (Fla. 1988). In doing so, the Fifth District erroneously suggested that the crime of involuntary manslaughter by act (i.e. the intentional commission of an unlawful act that unintentionally causes death) does not exist in Florida. In Looney v. State, 756 So. 2d 239 (Fla. 2d DCA 2000), the Second District interpreted Taylor as holding that all manslaughter by act or procurement is voluntary manslaughter (i.e., an intentional killing) and all involuntary manslaughter is involuntary manslaughter by culpable negligence. See Looney, 756 10 So. 2d at 240, receded from Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007) (en banc). Like the Fifth District in Barton, the Second District in Looney erroneously suggested that the crime of involuntary manslaughter by act does not exist in Florida. In Jefferies v. State, 849 So. 2d 401 (Fla. 2d DCA 2003), the Second District followed Looney’s interpretation of Taylor. See Jefferies, 849 So. 2d at 404, receded from in Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007) (en banc). Once again, the Second District erroneously suggested that the crime of involuntary manslaughter by act does not exist in Florida. In Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007), the Second District correctly stated that manslaughter by act can include, but does not necessarily require, an intent to kill. See Hall, 951 So. 2d at 95 (“[W]e do not read Taylor to hold that the crime of manslaughter by act is limited to intentional killings.”); see also id. at 96 (“[A] conviction for manslaughter by act does not require an intent to kill but only an intentional act that causes the death of the victim.”). With its decision in Hall, the Second District receded from its previous decisions in Looney and Jefferies. Id. at 96. Of note, the Second District expressed a concern in Hall that “[adding an intent to kill] element to the crime of manslaughter by act would serve to elevate the crime above second-degree murder, which does not require a specific intent to cause death but only requires ‘a depraved mind.’” Hall, 951 So. 2d at 95-96 (citing § 782.04(2), Fla. Stat.). That concern, however, fails to acknowledge that “[m]anslaughter, like murder, originated as a common law crime, created by judges rather than by the legislature.” LaFave, Wayne R., Substantive Criminal Law § 15.4 (3d ed.). In contrast, second-degree murder is largely a creature of statute. See Hogan v. State, 28 So. 763, 763 (Fla. 1900) (referring to “our statutory definition of murder in the second degree”); see also LaFave, Wayne R., Substantive Criminal Law § 14.7(e) (3d ed.). Additionally, the Second District’s concern fails to acknowledge that our supreme court expressly stated that: 11  • Intentional killings are not excluded from the statutory definition of manslaughter. See Williams, 26 So. at 186. • The common law crime of voluntary manslaughter is an intentional killing mitigated by a sudden and sufficient provocation. See Olds, 33 So. at 299. • Heat of passion can reduce an intentional homicide from first-degree murder and/or second-degree murder down to voluntary manslaughter. See Whidden, 59 So. at 561; Collins, 102 So. at 882; Febre, 30 So. 2d at 369. Put another way, the Second District’s concern does not recognize that intent to kill is an essential element of voluntary manslaughter. See Fortner, 161 So. at 96 (Brown, J., concurring); see also Sherouse, 536 So. 2d at 1195 (Cobb, J., concurring specially) (citing Williams, 26 So. at 186)). Furthermore, the Second District’s concern in Hall fails to acknowledge that some second-degree murders can be much more heinous than some voluntary (i.e., intentional) manslaughters. See, e.g., Ramsey v. State, 154 So. 855, 856 (Fla. 1934); see also Martinez v. State, 360 So. 2d 108, 109 (Fla. 3d DCA 1978); Pierce v. State, 376 So. 2d 417 (3d DCA 1979) (reducing a second-degree murder conviction to manslaughter where victim was aggressor, defendant was a reluctant participant, and defendant responded to non-deadly force with deadly force). Additionally, the Second District failed to address relatively contemporaneous decisions from other district courts of appeal clearly holding that heat of passion can reduce a depraved mind killing from second-degree murder to manslaughter. See, e.g., Paz v. State, 777 So. 2d 983, 984 (Fla. 3d DCA 2000); see also Palmore v. State, 838 So. 2d 1222, 1224 (Fla. 1st DCA 2003) (citing Paz). Finally, the Second District also expressed a concern that an intent to kill requirement “would make the crime of manslaughter by act virtually indistinguishable from first-degree premeditated murder, which requires only a conscious intent to kill.” Hall, 951 So. 2d at 96 (citing § 782.04(1)(a)1., Fla. Stat.). That concern, however, fails to recognize that, while first-degree, premediated 12 murder and voluntary manslaughter both share an intent to kill element, voluntary manslaughter contains the additional element: a “sudden” and “adequate” provocation. See Olds, 33 So. at 299; see also Disney, 73 So. at 601; Rivers, 78 So. at 345. In other words, the Second District failed to acknowledge that the greater offense (first-degree, premeditated murder) has fewer elements than the lesser offense (voluntary manslaughter). In Bolin v. State, 8 So. 3d 428 (Fla. 2d DCA 2009), the Second District applied Taylor and stated that “voluntary manslaughter is a crime of intent, [whereas] involuntary manslaughter is not.” Bolin, 8 So. 3d at 430 (citing Taylor, 444 So. 2d at 934). Without acknowledging that involuntary manslaughter by act requires the intent to commit an unlawful act, the Second District echoed the Fifth District’s erroneous suggestion in Barton that all involuntary manslaughters are “committed by culpable negligence” and that all manslaughters by act or procurement are voluntary manslaughter. Id. The court did not, however, address its previous decision in Hall. In Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009) (“Montgomery I”), this Court addressed the Fifth District’s decision in Barton and the Second District’s decision in Hall. See Montgomery I, 70 So. 3d at 604–05. More specifically, this Court examined the jury instruction for the lesser offense of manslaughter by act in effect at the time of the appellant’s trial. Id. at 604. Consistent with the Fifth District’s decision in Barton (as well as the Second District’s decisions in Looney and Jefferies that the court receded from in Hall), the instruction essentially defined manslaughter by act as voluntary manslaughter (an intentional killing mitigated by a sudden and sufficient provocation) to the exclusion of involuntary manslaughter by act (the intentional commission of an unlawful act that unintentionally causes death). This Court held that the crime of manslaughter by act, whether completed or attempted, does not require an intent to kill. See Montgomery I, 70 So. 3d at 606–07. This Court did not hold, however, that the crime of manslaughter by act can never include intentional killings. In dicta, this Court did agree with the Second District’s concern in Hall that “recognizing an intent-to-kill 13 element” in manslaughter by act “would be undesirable” because it would “elevate the crime above second-degree murder.” Montgomery I, 70 So. 3d at 605 (quoting Hall, 951 So. 2d at 95–96). Finally, this Court certified the following question to be one of great public importance: Is the State required to prove that the defendant intended to kill the victim in order to establish the crime of manslaughter by act? Montgomery I, 70 So. 3d at 608. The certified question suggests that this Court did not understand the distinction between voluntary manslaughter and involuntary manslaughter by act. In State v. Montgomery, 39 So. 3d 252 (Fla. 2010) overruled in part by Knight v. State, 286 So. 3d 147 (Fla. 2019) (“Montgomery II”), the Supreme Court of Florida answered the certified question in the negative and held “that the crime of manslaughter by act does not require the State to prove that the defendant intended to kill the victim.” Id. Echoing concerns expressed by the Second District in Hall and this Court in Montgomery I, the Court stated: “Although in some cases of manslaughter by act it may be inferred from the facts that the defendant intended to kill the victim, to impose such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter.” Montgomery II, 39 So. 3d at 256. Additionally, the Court stated: “Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim.” Id. In reaching its decision, the Court acknowledged a recent change to the standard jury instruction for manslaughter, which was amended to read: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. Montgomery II, 39 So. 3d at 257 (emphasis in original) (quoting In re Standard Jury Instructions in Criminal Cases—Report No. 2007–10, 997 So. 2d 403, 403 (Fla. 2008)). 14  In an about face from the previous instruction (which defined manslaughter by act as voluntary manslaughter to the exclusion of involuntary manslaughter by act), that interim instruction defined manslaughter by act as something less than involuntary manslaughter by act. Whereas the common law crime of involuntary manslaughter by act requires a general intent to commit an unlawful act that unintentionally causes death, the interim instruction required only an intent to commit an act which caused death. Montgomery II, 39 So. 3d at 257 (quoting In re Standard Jury Instructions in Criminal Cases—Report No. 2007– 10, 997 So. 2d at 403). In other words, any act would do. Instead of separating manslaughter by act into voluntary manslaughter and involuntary manslaughter by act, the interim instruction incorporated a lowest common denominator approach to the mens rea element, only requiring the State to prove the intent to commit an act that resulted in death (which, as noted previously, is not the mens rea for involuntary manslaughter by act). Instead of simplifying the law, however, this approach created additional confusion. In 2010, the Court modified the interim instruction. See In re Amends. to Standard Jury Instructions in Crim. Cases-Instruction 7.7, 41 So. 3d 853, 855 (Fla. 2010) (“In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had an premeditated intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death.”). Although it modified the interim instruction, this instruction perpetuated the lowest common denominator approach – to include the erroneous omission of the requirement to prove the intent to commit an unlawful act. Then, in 2011, the Court modified the manslaughter instruction once again. See In re Amends. to Standard Jury Instructions in Crim. Cases--Instruction 7.7, 75 So. 3d 210, 212 (Fla. 2011) (“In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death.”). In pertinent part, this is the language of the current instruction. As 15 with the two instructions that preceded it, the instruction fails to define voluntary manslaughter; and it includes the wrong mens rea for involuntary manslaughter by act. Finally, in Prethel v. State, 177 So. 3d 631 (Fla. 2d DCA 2015), the Second District repeated its mistake in Bolin—characterizing manslaughter by act or procurement as voluntary manslaughter and limiting involuntary manslaughter to manslaughter by culpable negligence. See Prethel, 177 So. 3d at 634 (citing Bolin). After reviewing all the cases outlined above, I conclude that section 782.07(1), Florida Statutes, incorporates the following three types of common law manslaughter: • Voluntary manslaughter: the intentional killing of another when such killing is mitigated by a sudden and sufficient provocation like heat of passion; • Involuntary manslaughter by act: the intentional commission of an unlawful act that unintentionally causes the death of another; and, • Involuntary manslaughter by culpable negligence: the killing of another by act or omission, with that act or omission 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; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them. IV Based on the foregoing, I conclude that the trial court erred when it failed to instruct the jury that voluntary manslaughter is an intentional killing of another mitigated by a sufficient and sudden provocation like heat of passion. Additionally, I conclude the trial court erred when it failed to instruct the jury that heat of passion is a partial, affirmative defense that lowers an intentional or depraved mind killing from murder to manslaughter. Nevertheless, I find that Agee failed to establish that those errors 16 “‘reach[ed] down into the validity of the trial[.]’” State v. Delva, 575 So. 2d 643, 644–45 (Fla. 1991) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). First, Agee admitted that he sought revenge. See LaFave, Wayne R., Substantive Criminal Law §15.2(a) (3d ed.) (“A ‘passion for revenge,’ of course, will not do.”); cf. Haygood v. State, 109 So. 3d 735, 747 (Fla. 2013) (Canady, J., dissenting) (“A defendant who has brooded on a prior wrong and has nursed his resentment and anger into a full-blown rage is not one who lacked a depraved mind because he was subject to ‘a sudden access of passion.’”) Second, even though Agee’s mother sent him inflammatory text messages, too much time elapsed between the last message and the shooting (about 40 minutes). Compare Paz, 777 So. 2d at 984 (finding a “classic case of manslaughter based on adequate legal provocation: Paz killed Winton immediately upon realizing that the victim had sexually assaulted his wife” (emphasis in original)) with Lusk v. State, 498 So. 2d 902, 905 (Fla. 1986) (finding that threats did not support a heat of passion defense when a “four hour period to reflect negates the existence of a dominating passion murder which occurs without the time necessary to form a premeditated design to kill.”). And third, Agee’s encounter with Sims inside the Home Depot was legally inadequate to support a separate eruption of passion. See Reed v. State, 287 So. 3d 606, 609 (Fla. 4th DCA 2019). Therefore, I agree with the majority that we should affirm Agee’s judgment. _____________________________ Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. James Uthmeier, Attorney General, and Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee. 17