Thurston v. State , 762 So. 2d 558 ( 2000 )

762 So. 2d 558 (2000)

Deatrick THURSTON, Appellant,
v.
STATE of Florida, Appellee.

No. 4D99-2504.

District Court of Appeal of Florida, Fourth District.

June 28, 2000. Rehearing Denied August 10, 2000.

Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Gary K. Milligan, Assistant Attorney General, Fort Lauderdale, for appellee.

PER CURIAM.

Deatrick Thurston appeals his conviction and sentence for attempted second degree murder with a firearm. We accept the state's concession that the trial court committed fundamental error when it did not include, as part of its jury instruction, the Introduction to Attempted Homicide Instruction, which contains the definitions of Justifiable and Excusable Attempted Homicide. See Fla. Std. Jury Instr. (Crim.) (1999); Rojas v. State, 552 So. 2d 914 (Fla.1989); Van Loan v. State, 736 So. 2d 803 (Fla. 2d DCA 1999); Hall v. State, 677 So. 2d 1353 (Fla. 5th DCA 1996); Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995).

Accordingly, we reverse appellant's conviction and sentence for attempted second degree murder and remand for a new trial. We also certify to the supreme court the same question, as that certified in Brown v. State, 733 So. 2d 598, 599 (Fla. 5th DCA 1999):

DOES THE CRIME OF ATTEMPTED SECOND DEGREE MURDER EXIST IN FLORIDA?

REVERSED and REMANDED.

DELL, FARMER and GROSS, JJ., concur.