supreme court to reconsider its decision in Lucas and certify a question of great public importance.
We, therefore, certify the following two questions:
IN ORDER FOR COUNSEL TO WAIVE AN ERROR IN A JURY INSTRUCTION THAT WOULD OTHERWISE BE FUNDAMENTAL, IS IT ONLY NECESSARY THAT COUNSEL AFFIRMATIVELY AGREE TO THE INSTRUCTION, OR IS IT ALSO NECESSARY FOR COUNSEL TO AFFIRMATIVELY AGREE TO THE PORTION OF THE INSTRUCTION THAT IS ERROR AND/OR TO BE AWARE THAT THE INSTRUCTION IS ERRONEOUS? WHEN A DEFENDANT IS CONVICTED OF EITHER MANSLAUGH*494TER OR A GREATER OFFENSE NOT MORE THAN ONE STEP REMOVED, DOES THE FAILURE TO INSTRUCT THE JURY ON JUSTIFIABLE OR EXCUSABLE HOMICIDE CONSTITUTE FUNDAMENTAL ERROR NOT SUBJECT TO A HARMLESS ERROR ANALYSIS EVEN WHERE THE RECORD REFLECTS THERE WAS NO DISPUTE AS TO THIS ISSUE AND THERE WAS NO EVIDENCE PRESENTED FROM WHICH THE JURY COULD FIND JUSTIFIABLE OR EXCUSABLE HOMICIDE? For the reasons discussed above, we affirm the conviction for home invasion robbery, reverse the conviction for second-degree murder, and remand.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
SWANSON, J., concurs; BENTON, C.J., concurs in part and dissents in part with opinion.
. We note the Second District certified conflict with Riesel, 48 So.3d 885, and the supreme court has granted review. Daniels v. State 72 So.3d 227 (Fla. 2d DCA 2011), rev. granted 79 So.3d 744 (Fla.2012).