          Supreme Court of Florida
                                   ____________

                                  No. SC13-1236
                                  ____________

                             STATE OF FLORIDA,
                                 Petitioner,

                                         vs.

                              JIMMY MOORE, JR.,
                                  Respondent.

                                 [January 14, 2016]

PER CURIAM.

      We initially accepted jurisdiction under article V, section 3(b)(4), of the

Florida Constitution to review Moore v. State, 114 So. 3d 486 (Fla. 1st DCA

2013), a decision in which the First District Court of Appeal certified the following

questions to be of great public importance:

      IN ORDER FOR COUNSEL TO WAIVE AN ERROR IN A
      JURY INSTRUCTION THAT WOULD OTHERWISE BE
      FUNDAMENTAL, IS IT ONLY NECESSARY THAT COUNSEL
      AFFIRMATIVELY AGREE TO THE INSTRUCTION, OR IS IT
      ALSO NECESSARY FOR COUNSEL TO AFFIRMATIVELY
      AGREE TO THE PORTION OF THE INSTRUCTION THAT IS
      ERROR AND/OR TO BE AWARE THAT THE INSTRUCTION IS
      ERRONEOUS?
      WHEN A DEFENDANT IS CONVICTED OF EITHER
      MANSLAUGHTER OR A GREATER OFFENSE NOT MORE
      THAN ONE STEP REMOVED, DOES THE FAILURE TO
      INSTRUCT THE JURY ON JUSTIFIABLE OR EXCUSABLE
      HOMICIDE CONSTITUTE FUNDAMENTAL ERROR NOT
      SUBJECT TO A HARMLESS ERROR ANALYSIS EVEN WHERE
      THE RECORD REFLECTS THERE WAS NO DISPUTE AS TO
      THIS ISSUE AND THERE WAS NO EVIDENCE PRESENTED
      FROM WHICH THE JURY COULD FIND JUSTIFIABLE OR
      EXCUSABLE HOMICIDE?

Id. at 493-94. After further consideration and hearing oral argument in this case,

we have determined that we should exercise our discretion and discharge

jurisdiction. Accordingly, we hereby dismiss review.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., dissents.

NO MOTION FOR REHEARING WILL BE ALLOWED.

Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance

      First District - Case No. 1D10-4052

      (Madison County)

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Kathryn Lane, Assistant Attorney General, Tallahassee, Florida,

      for Petitioner




                                        -2-
Nancy Ann Daniels, Public Defender, and Kathleen Ann Stover, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

      for Respondent




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