Cox v. State

127 So. 3d 561, 2012 WL 5500506, 2012 Fla. App. LEXIS 19728

Opinion

PER CURIAM.

The defendant appeals his conviction and sentence for robbery with a firearm and attempted second degree murder with a firearm. He raises four issues on appeal, none of which we find has merit. However, in his fourth issue, the defendant argues the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter. We disagree and affirm. See Williams v. State, 40 So.3d 72, 73 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011).

In Williams, we held that the giving of the standard jury instruction on attempted manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder. All the other districts have held contrary to Williams. See Houston v. State, 87 So.3d 1, 4 (Fla. 2d DCA 2011); Burrows v. State, 62 So.3d 1258, 1259 (Fla. 3d DCA 2011); Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009); Burton v. State, 125 So.3d 788, at 789 (Fla. 5th DCA 2011).

The parties agree Williams is controlling in this district until our supreme court resolves the conflict. We affirm, but certify conflict with the other districts on this issue. See Coriolan v. State, 77 So.3d 840, 840 (Fla. 4th DCA 2012).

Affirmed. Conflict certified.

MAY, C.J., TAYLOR and DAMOORGIAN, JJ., concur.