Willard v. State

764 So. 2d 904, 2000 Fla. App. LEXIS 10252, 2000 WL 1133069

Opinions

W. SHARP, J.

Willard appeals from his conviction and sentence for attempted second degree murder, following a jury trial. He argues there is no such offense as attempted second degree murder. We disagree, but we have certified that question to the Florida Supreme Court. See Brown v. State, 733 So.2d 598 (Fla. 5th DCA 1999), rev. granted, 744 So.2d 462 (Fla.1999). Because the question is unresolved at present, we certify the same question in this case.

Willard also argues he was denied a fair trial by the prosecutor’s improper remarks, which tended to bolster the testimony of a psychiatric witness because he also had a law degree. This enabled the expert to give a legal opinion, which was beyond his qualifications. We agree there was improper bolstering in this case, but the defense failed to object. Occhicone v. State, 570 So.2d 902, 905-906 (Fla.1990); Castor v. State, 365 So.2d 701, 703 (Fla.1978). The error was not fundamental, and thus we conclude since it was not preserved, it does not require reversal. Glendening v. State, 536 So.2d 212, 221 (Fla.1988).

AFFIRMED; Question CERTIFIED.

GRIFFIN, J., concurs. COBB, J., concurs specially with opinion.