DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       GLENN CALVIN JACKSON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-3241

                           [November 25, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Rosemarie Scher, Judge; L.T. Case No. 2017-CF-012412-
AWB.

  Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

              ON MOTION FOR WRITTEN OPINION AND/OR REHEARING

PER CURIAM.

   The motion for written opinion and/or rehearing is denied.

GERBER and ARTAU, JJ., concur.
WARNER, J., concurs specially with opinion.

WARNER, J., specially concurring.

   In his motion for rehearing, appellant focuses on the issue of whether
the trial court fundamentally erred in failing to give a heat of passion jury
instruction in appellant’s trial for attempted second degree murder.
Although there is also an issue as to whether such an instruction was
authorized on the facts, the central issue is whether it can be fundamental
error not to give this special jury instruction. The supreme court has
answered that question in Kaczmar v. State, 

, 1005-06 (Fla.
2012), concluding that it is not fundamental error:
    Kaczmar contends that the trial court fundamentally erred in
    not sua sponte providing a special jury instruction on heat of
    passion. This claim is without merit. Kaczmar failed to
    request a special jury instruction or object when the trial court
    read the standard jury instructions, and because no
    fundamental error occurred, this issue is not preserved for
    review. See Coday v. State, 

, 995 (Fla. 2006)
    (rejecting claim that a special jury instruction on heat of
    passion was necessary to correctly explain the law when the
    issue was not preserved for appellate review); see also
    Stephens v. State, 

, 755 (Fla. 2001) (“[T]he
    failure to give special jury instructions does not constitute
    error where the instructions given adequately address the
    applicable legal standards.”); Sochor v. State, 

,
    290 (Fla. 1993) (the failure to give an instruction unnecessary
    to prove an essential element of the crime charged is not
    fundamental error).

                          *        *         *

Final Upon Release; No Motion For Rehearing Will Be Entertained.




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