HOLIDAY v. STATE (1999)

The issue raised in this appeal is whether the trial court erred fundamentally by giving the jury the standard instruction on entrapment in effect in 1997, when this offense and appellant's trial took place.   The standard instruction was changed effective July, 1998, and is now consistent with the supreme court's analysis of the entrapment defense found in Munoz v. State, 629 So.2d 90 (Fla. 1993).   See Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla. 1998).   See also Vazquez v. State, 700 So.2d 5 (Fla. 4th DCA 1997), appeal dismissed, 718 So.2d 755 (Fla.1998).   It is undisputed that no objection was raised at trial to the standard jury instruction.

In Sochor v. State, 619 So.2d 285, 290 (Fla.1993), the supreme court ruled that “[f]ailure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error.”   Since the entrapment instruction pertains to a defense rather than to an essential element of the crime charged, no fundamental error occurred.   We recognize that the Fourth District recently ruled to the contrary in Miller v. State, 723 So.2d 353 (Fla. 4th DCA 1998), and accordingly certify conflict with that decision.

AFFIRMED.

PER CURIAM.

BOOTH, JOANOS and WEBSTER, JJ., CONCUR.