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McCUTCHEON v. STATE

No. 71-581.

270 So.2d 413 (1972)

James Russell McCUTCHEON et al., Appellants, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fourth District.

December 12, 1972.

Attorney(s) appearing for the Case

Norman D. Zimmerman, Pompano Beach, for appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, and Andrew I. Friedrich, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

MAGER, J., and MELVIN, WOODROW M., Associate Judge, concur.

WALDEN, J., dissents, with opinion.

WALDEN, Judge (dissenting).

I would reverse and remand for a new trial because of the failure of the trial court to charge the jury upon the lesser included offenses.

Florida Criminal Procedure Rule 3.510, 33 F.S.A., provides:

"Rule 3.510 Conviction of Attempt; Lesser Included Offense "Upon...

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