Jones v. State , 459 So. 2d 475 ( 1984 )

459 So. 2d 475 (1984)

Moses JONES, Appellant,
v.
STATE of Florida, Appellee.

No. 83-1096.

District Court of Appeal of Florida, Fifth District.

November 29, 1984.

James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

We affirm although we hereby certify to the Florida Supreme Court the following question of great public importance:

Harris v. State, 438 So. 2d 787 (Fla. 1983), recognizes a constitutional right of an accused in a capital case to have the jury instructed as to necessarily lesser included offenses and that the violation of that right constitutes fundamental error, a waiver of which, to be effective, must be made on the record knowingly and intelligently by the accused personally rather than by counsel. Do those charged with non-capital crimes enjoy this constitutional right as well as those charged with capital crimes?

AFFIRMED.

ORFINGER, FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.