Jones v. State (459 So. 2d 475, 1984)

PER CURIAM.

We affirm although we hereby certify to the Florida Supreme Court the following question of great public importance:

Harris v. State, 438 So.2d 787 (Fla.1983), recognizes a constitutional right of an accused in a capital case to have the jury instructed as to necessarily lesser included offenses and that the violation of that right constitutes fundamental error, a waiver of which, to be effective, must be made on the record knowingly and intelligently by the accused personally rather than by counsel. Do those charged with non-capital crimes enjoy this constitutional right as well as those charged with capital crimes?

AFFIRMED.

ORFINGER, FRANK'D. UPCHURCH, Jr., and COWART, JJ., concur.