Opinion
No. 85-819.
December 4, 1985.
Appeal from the Circuit Court, Palm Beach County, Don T. Adams, J.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
A defendant, charged and convicted of manslaughter, complains on appeal that her counsel's waiver of jury instructions as to lesser included crimes was insufficient because the defendant herself did not actually participate in the waiver. We affirm.
In Harris v. State, 438 So.2d 787 (Fla. 1983) the Supreme Court, in a capital case, held that the defendant, in addition to his counsel, must participate in the waiver. However, we agree with the Fifth District that such participation should be limited to capital cases. See Jones v. State, 459 So.2d 475 (Fla. 5th DCA 1984). The Jones case supra, has been certified to the Supreme Court. Consequently, incorporating the question in Jones by reference, we also certify it by way of this decision.
AFFIRMED.
ANSTEAD, J., and BOARDMAN, EDWARD F., Associate Judge (Retired), concur.