¶1ON PETITION FOR REHEARING
¶2The state in its petition for rehearing asserts “. . . that in [this court’s] opinion it appears to have ruled that any departure from the standard instruction is fundamental error. . . . ” (First emphasis supplied). We did not so hold.
¶3What we did say was that the instruction given differed from the recommended Florida Standard Jury Instructions in Criminal Cases. Lest there be no mistake, we state unequivocally and without reservation that it was not mandatory for the trial court to have given the instruction in the exact language of the Standard Jury Instruction. The standard instruction was mentioned in our opinion only to show a proper instruction defining an act that evinces a depraved mind.
¶4It is the sole responsibility of the trial judge to correctly and fairly instruct the jury on each and every essential element of the crime charged against an accused. The instruction given by the trial court was not only misleading but an improper and incorrect statement of the law defining an act evincing a depraved mind.
¶5We adhere to our original opinion. The petition for rehearing is
¶6Denied.
¶7McNULTY, A./C.J., and EVANS, VERNON W., Jr., Associate Judge, concur.