District Court of Appeal of Florida October 6, 1992, No. 91-1687 (Alpern v. State)

COPE, Judge,

specially concurring.

In my view the trial court erred by failing to give the requested instruction on third degree murder, which was a permissive lesser included offense of first degree felony murder. Sale or trafficking in a substance in lieu of cocaine (§ 817.563, Fla. Stat. (1991)) would satisfy the “other than” element of subsection 782.04(4), Florida Statutes (1991).