¶1A defendant, charged and convicted of manslaughter, complains on appeal that her counsel’s waiver of jury instructions as to lesser included crimes was insufficient because the defendant herself did not actually participate in the waiver. We affirm.
¶2In Harris v. State, 438 So.2d 787 (Fla.1983) the Supreme Court, in a capital case, held that the defendant, in addition to his counsel, must participate in the waiver. However, we agree with the Fifth District that such participation should be limited to capital cases. See Jones v. State, 459 So.2d 475 (Fla. 5th DCA 1984). The Jonescase supra, has been certified to the Supreme Court. Consequently, incorporating the question in Jonesby reference, we also certify it by way of this decision.
¶3AFFIRMED.