HICKS v. STATE, 411 So.2d 1040 (Fla.App. 4 Dist. 1982)

PHILLIP THOMAS HICKS, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 79-1619.District Court of Appeal of Florida, Fourth District.
April 14, 1982.

Appeal from Circuit Court, Broward County; Joseph E. Price, Jr., Judge.

Page 1041

Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.

OPINION ON REHEARING
PER CURIAM.

Our opinion of December 23, 1981, is hereby withdrawn. In our earlier opinion we reversed appellant’s convictions for attempted second degree murder, burglary and possession of burglary tools because of the failure of the trial court to give instructions on penalties for the crimes charged pursuant to Tascano v. State, 393 So.2d 540 (Fla. 1980). Appellant was charged with and requested penalty instructions on attempted first degree murder, burglary and possession of burglary tools. We now reverse the convictions for burglary and possession of burglary tools and remand for a new trial on the authority of Tascano, supra.
However, we affirm the conviction for attempted second degree murder and hold that any failure to instruct on penalties for attempted first degree murder was harmless. See Kemper v. State, 404 So.2d 1184 (Fla. 4th DCA 1981). We also certify the following question to the Florida Supreme Court as one of great public importance:

May the harmless error rule be applied where the only penalty instruction requested is for the main offense charged and the defendant is subsequently convicted of a lesser included offense?

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.

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