Stone v. State

District Court of Appeal of Florida

Stone v. State

110 So. 3d 97, 2013 WL 950741, 2013 Fla. App. LEXIS 4056

CourtDistrict Court of Appeal of Florida

DecidedMarch 13, 2013

DocketNo. 2D11-5738

StatusPublished

This text of 110 So. 3d 97 (Stone v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stone v. State, 110 So. 3d 97, 2013 WL 950741, 2013 Fla. App. LEXIS 4056 (Fla. Ct. App. 2013).

Pincite

Opinion

KHOUZAM, Judge.

Affirmed. See Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011). As in Williams, we hold that a trial court’s failure to instruct the jury on section 812.025, Florida Statutes (2011), does not constitute fundamental error. Also as in Williams, we recognize conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), and certify to the Florida Supreme Court the following questions of great public importance:

1. MUST THE TRIAL COURT INSTRUCT THE JURY TO PER[98]*98FORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?

2. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?

3. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREES OR OF DIFFERENT SEVERITY RANKING?

Affirmed; question certified.

ALTENBERND and SLEET, JJ., Concur.

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