        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                         ROGER E. CARUTHERS,
                              Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D16-1567

                            [December 13, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No. 13-6550 CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

                       ON MOTION FOR REHEARING

LEVINE, J.

    In a motion for rehearing, the state for the first time cites Dean v. State,
42 Fla. L. Weekly S769 (Fla. Aug. 31, 2017), an opinion which issued
before oral argument in this case. In a concurring opinion in Dean, three
justices stated that “where the evidence supports the charged offense as
well as the requested instruction on a necessarily lesser included offense,
any error in failing to give the requested instruction is harmless because
the defendant is not entitled to an opportunity for a jury pardon.” See id.
(Polston, J., concurring). Because Dean did not involve a majority, we are
compelled to follow Daugherty v. State, 211 So. 3d 29 (Fla. 2017). See
Santos v. State, 629 So. 2d 838, 840 (Fla. 1994) (“Under the Florida
Constitution, both a binding decision and a binding precedential opinion
are created to the extent that at least four members of the Court have
joined in an opinion and decision.”) (citing art. V, §3(a), Fla. Const.)
(footnotes omitted). Accordingly, the motion for rehearing is denied.

GERBER, C.J., and MAY, J., concur.
