manslaughter charge is fastate montgome montgomery, a little more infamous from the florida supreme court in 2010 declared the instruction for manslaughter was invalid, however, it is on page 5 of that opinion that i think the most operative language begins, actually begins the bottom of page 4 under the heading lesser included offenses, continues on page 5. but it makes very clear manslaughter is a category 1 lesser included offense of first-degree murder. and what that means is delineated on page 5, a necessarily lesser included offense is as the name implies a lesser offense always included in the major offense. the trial judge has no discretion on whether to instruct the jury on a necessarily included offense once the judge determines the offense is a necessarily included offense, the instruction must be given. consequently, at montgomery's trial for in that case, first-degree murder, but also here as to second degree murder