Opinion
No. AA-410.
November 9, 1976. Rehearing Denied December 9, 1976.
Appeal from the Circuit Court, Columbia County, Alva Duncan, J.
David J. Busch and Michael M. Corin, Asst. Public Defenders, Tallahassee, for appellant.
Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant's conviction of robbery must be reversed for the trial court's failure upon request to charge the jury concerning the offense of attempted robbery. Rule 3.510, R.Cr.P.; Brown v. State, 206 So.2d 377 (Fla. 1968). There are no circumstances present which would enable us to treat the error as harmless on authority of Spigner v. State, 304 So.2d 496 (Fla.App.1st, 1974). The federal question raised by the State under the doctrine of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which if sustained would require partial overruling of Brown and modification of Rule 3.510, R.Cr.P., is more appropriately presented to the Florida Supreme Court.
REVERSED.
RAWLS, Acting C.J., and MILLS and SMITH, JJ., concur.