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PENA v. STATE

No. SC02-2411.

901 So.2d 781 (2005)

Jose PENA, Petitioner, v. STATE of Florida, Respondent.

Supreme Court of Florida.

Rehearing Denied April 25, 2005.

Attorney(s) appearing for the Case

James Marion Moorman, Public Defender and Terrence E. Kehoe, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, Robert J. Krauss, Senior Assistant Attorney General and Erica M. Raffel, Assistant Attorney General, Tampa, FL, for Respondent.

QUINCE, J.

We have for review a decision of the Second District Court of Appeal on the following two questions, certified to be of great public importance:

IS IT FUNDAMENTAL ERROR FOR A TRIAL COURT TO OMIT AN INSTRUCTION THAT THE DEFENDANT MUST BE EIGHTEEN YEARS OF AGE OR OLDER TO COMMIT DRUG-DISTRIBUTION, FIRST-DEGREE MURDER UNDER SECTION 782.04(1)(a)(3), FLORIDA STATUTES (1999), WHEN IT IS UNDISPUTED THAT THE DEFENDANT IS OVER EIGHTEEN? IS IT...

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