          Third District Court of Appeal
                                 State of Florida

                           Opinion filed January 23, 2019.

                                ________________

                                  No. 3D18-0991
                            Lower Tribunal No. 17-16780
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                                  Joseph Smith,
                                     Appellant,

                                         vs.

                              The State of Florida,
                                     Appellee.



         An Appeal from the Circuit Court for Miami-Dade County, Nushin G. Sayfie,
Judge.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.

     Ashley Brooke Moody, Attorney General, and Gabrielle Raemy Charest-
Turken, Assistant Attorney General, for appellee.


Before EMAS, C.J., and HENDON, J., and LAGOA, Associate Judge.


                           ON CONFESSION OF ERROR
      LAGOA, Associate Judge.

      Joseph Smith (“Smith”) appeals his conviction and sentence for possession of

a controlled substance, possession of drug paraphernalia, and resisting an officer

without violence, arguing that his trial was fundamentally flawed due to the trial

court’s failure to instruct the jury as to reasonable doubt. As the State correctly

concedes, the trial court’s failure to instruct the jury as to Florida Standard Jury

Instruction (Criminal) 3.7 Plea of Not Guilty; Reasonable Doubt, and Burden of

Proof, or any similar instruction, constituted fundamental error. See Cavagnaro v.

State, 117 So. 3d 1111, 1112 (Fla. 3d DCA 2012) (finding fundamental error where

the jury charge did not include Florida Standard Jury Instruction (Criminal) 3.7 or

any similar instruction); see also Curry v. State, 169 So. 3d 1258, 1258 (Fla. 5th

DCA 2015); Burnette v. State, 103 So. 3d 1059 (Fla. 1st DCA 2013). Accordingly,

we reverse Smith’s conviction and remand for a new trial.

      Reversed and remanded.




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