          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                 LUIS CASTILLO,
                                    Appellant,

                                          v.

                              STATE OF FLORIDA,
                                   Appellee.

                                  No. 4D10-1573

                                  [May 20, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No.
2008CF011497CXX.

   Madeline M. Acosta and Christina K. Diaz of Acosta & Diaz, LLC, Miami
Lakes, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   The defendant appeals his convictions and multiple, consecutive life
sentences arising from the armed robbery of a convenience store in 2007,
and the tragic death of an innocent bystander during the get-away. The
case was initially submitted to us with an Anders1 brief. After review of
the record, we ordered supplemental briefing on a jury instruction issue.
Having received supplemental briefs from the defense and the State, we
now affirm.

   The sole issue we address is whether error occurred when the trial court
did not instruct the jury on the offense of robbery with a weapon, a lesser-
included offense of robbery with a firearm. Upon our relinquishment of
jurisdiction, the trial court held an evidentiary hearing on the issue. The
defendant was present and represented by appellate counsel at the
hearing. The trial court took testimony and reviewed the record of the trial
over which it presided. The trial court found:

1   Anders v. California, 386 U.S. 738 (1967).
      [T]he record alone demonstrates that defense counsel
      withdrew his request for all category one lesser included
      offenses. . . . Defense counsel reviewed the final draft of the
      jury instructions and handed them to the court and
      affirmatively indicated that the instructions are the ones he
      wanted read to the jury. Defense counsel abandoned his
      pursuit of all category one lesser included offenses and
      acquiesced to the jury instructions given without objection.
      At no time did the trial court deny the Defendant’s request for
      all category one lesser included offenses. The undersigned
      would not have denied any requested and pursued category
      one lesser included offense. For the foregoing reasons, the
      Court finds that defense counsel withdrew his request for all
      category one lesser included offenses.

    The failure to give a requested lesser-included instruction that is one
step removed from the charged crime constitutes per se reversible error.
See Reddick v. State, 394 So. 3d 417, 418 (Fla. 1981). However, “[a]
defendant in a non-capital case must specifically request instructions on
lesser-included offenses, or object to the omission; otherwise, any error in
failing to give an instruction that was not requested is not preserved for
appellate review and is not fundamental error.” Silver v. State, 149 So. 3d
54, 58 (Fla. 4th DCA 2014). Here, defense counsel neither requested the
lesser-included offense of robbery with a weapon nor objected when the
instructions were given. We therefore affirm.

   Affirmed.

TAYLOR, MAY and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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