The Court previously issued its opinion affirming Appellant's conviction and sentence for attempted second-degree murder. Knight v. State , 41 Fla. L. Weekly D1760, 2016 WL 4036091 (Fla. 1st DCA July 28, 2016). Appellant moved for rehearing, certification of a question of great public importance, and rehearing en banc.1 We deny Appellant's motion, withdraw our prior opinion, and in its place substitute the following opinion affirming Appellant's conviction and sentence on two alternative grounds. We certify conflict with Caruthers v. State , 232 So.3d 441 (Fla. 4th DCA 2017). We also re-certify as a question of great public importance a question we certified in Moore v. State , 114 So.3d 486, 489 (Fla. 1st DCA 2013), review dismissed , 181 So.3d 1186, 1186-87 (Fla. 2016).
* * *
Appellant challenges his conviction and thirty-year sentence for attempted second-degree murder of his former girlfriend.2 The evidence supported the conclusion that he used a heavy, metal hydraulic jack handle to beat the victim very severely in her face and head, breaking the arm she used to try to block the attack, and breaking one of her eye sockets, in addition to inflicting other serious injuries to her face and head, including a gash down to her skull, leaving her with permanent residual impairments. The emergency medicine physician who treated the victim testified that the injuries required a direct blow of great force.
The victim testified that Appellant had lived with her and her two young-adult children for a short time and had previously threatened to kill her if she ever tried to leave him. After Appellant moved out of *41the victim's house at the request of the victim and her son, the victim obtained an injunction for protection against domestic violence against Appellant. Nine hours after he was served with that injunction, at a time when he was aware from having lived with the victim that she would be leaving her house alone to prepare to leave in her car, Appellant was waiting for her and attacked her. The victim saw him begin beating her with the weapon, although the severity of the beating prevented her from remembering the remainder of the attack. The victim's son heard her call out, and was an eyewitness to part of the attack. He saw Appellant with the weapon in his hand and confronted him. The victim's daughter saw Appellant walking away from the attack carrying an object matching the description of the weapon.
The weapon was found a short distance away, between the victim's house and the place where law enforcement found Appellant. The weapon was found to have the victim's DNA on both ends and Appellant's DNA on one end. Although the weapon was the handle to a hydraulic jack, no such jack was found anywhere near the victim's house or surrounding area, supporting the conclusion that Appellant had brought it with him. The presence of the weapon, together with the evidence of Appellant's having been served with the domestic violence injunction just hours earlier, his timed arrival at the victim's house, and his lying in wait for her, also supported the conclusion that Appellant had planned the attack in advance.
Appellant did not testify at his trial, but neither the fact of the attack nor Appellant's identity as the attacker was disputed. There was evidence that upon being informed of the charges including use of a crowbar as a weapon, Appellant spontaneously denied having used a weapon; but there was no evidence explaining how the victim's serious injuries including a deep gash down to her skull could have been inflicted with bare hands. Defense counsel argued to the jury that the attack was not premeditated, Appellant had no intent to kill the victim, and the evidence was insufficient to establish that Appellant had used the jack handle as his weapon for the attack.
The jury was instructed on the following offenses in the following order:
- attempted first-degree premeditated murder with a weapon (the charged offense);
- attempted first-degree premeditated murder;
- attempted second-degree murder with a weapon (the offense of conviction);
- attempted second-degree murder;
- attempted voluntary manslaughter with a weapon (the erroneous instruction);
- attempted voluntary manslaughter;
- aggravated battery with a deadly weapon or great bodily harm;
- felony battery with great bodily harm; and
- battery.
Appellant argues that the trial court committed fundamental error by using a jury instruction on the lesser-included crime of attempted voluntary manslaughter by act that the Florida Supreme Court had invalidated several years earlier for incorrectly including an element of intent to kill. State v. Montgomery , 39 So.3d 252, 259-60 (Fla. 2010). The erroneous jury instruction for attempted voluntary manslaughter provided as follows, with the erroneous language italicized:
To prove the crime of Attempted Voluntary Manslaughter, the State must prove the following element beyond a reasonable doubt:
*42ARNOLD JEROME KNIGHT committed an act or procured the commission of an act, which was intended to cause the death of [VICTIM] and would have resulted in the death of [VICTIM] except that someone prevented ARNOLD JEROME KNIGHT from killing [VICTIM] or he failed to do so.
However, the defendant cannot be guilty of Attempted Voluntary Manslaughter if the attempted killing was either excusable or justifiable as I have previously explained those terms.
It is not an attempt to commit manslaughter if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.
To "procure" means to persuade, induce, prevail upon, or cause a person to do something.
In order to convict of Attempted Voluntary Manslaughter it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.
The Florida Supreme Court held in Montgomery that this standard instruction was erroneous for including the element of intent to kill; and further held that the last line of the instruction, stating it is not necessary to prove premeditated intent to kill, was insufficient to cure the error. 39 So.3d at 257-58. By the time the Montgomery opinion was rendered, the supreme court had approved a corrected jury instruction on manslaughter by act, which added that "it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death ." Id. at 257 (quoting In re Standard Jury Instructions in Criminal Cases-Report No. 2007 - 10, 997 So.2d 403, 403 (Fla. 2008) ).
The Florida Supreme Court further held in Montgomery that-because of the jury pardon doctrine-the use of an incorrect manslaughter by act instruction is fundamental error, and "per se reversible,"3 if the defendant is convicted of second-degree murder (and by extension, attempted second-degree murder), a crime only one step above manslaughter. Id. at 259-60 ("A jury must be given a fair opportunity to exercise its inherent 'pardon' power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.") (quoting Pena v. State , 901 So.2d 781, 787 (Fla. 2005) ).
In part I of this opinion we find that the Florida Supreme Court recently receded from the jury pardon doctrine. Dean v. State , 230 So.3d 420, 425 (Fla. 2017).4 That change in the law eliminates the rationale for the fundamental error analysis of Montgomery . We therefore conclude in part I of this opinion that the use of an erroneous manslaughter instruction does not constitute reversible error on the facts presented. We certify conflict with Caruthers , which held that the Florida Supreme Court did not recede from the jury pardon doctrine in Dean .
*43In part II of this opinion, we adhere to our previous holding that this error can be waived and was waived on the specific facts presented. We thus affirm Appellant's conviction and sentence on this alternative ground. We re-certify as a question of great public importance a question we certified in Moore , 114 So.3d at 493, review dismissed , 181 So.3d at 1186-87.
I. ABROGATION OF THE JURY PARDON DOCTRINE .
In Dean , the defendant was charged with second-degree felony murder and requested that the jury be instructed on manslaughter as a lesser-included offense. 230 So.3d at 421-22. The trial court agreed with the state that manslaughter was not a lesser-included offense of second-degree felony murder, and decided not to instruct the jury on manslaughter. Id. The Fourth District held that manslaughter is not a necessary lesser-included offense of second-degree felony murder, but certified the question to the Florida Supreme Court. Id. at 422. The supreme court declared in its per curiam opinion that manslaughter was a necessary lesser-included offense of second-degree felony murder. Id. at 422-24. Not giving the manslaughter instruction would have constituted fundamental error, see Montgomery , 39 So.3d at 258 ; which is not subject to harmless error analysis, Reed v. State , 837 So.2d 366, 369-70 (Fla. 2002).
Dean generated four opinions. Justices Lewis, Canady, and Lawson joined the per curiam opinion affirming Dean's conviction. The per curiam opinion expressly incorporated by reference the reasons set forth in Justice Polston's concurring opinion, joined by Justices Canady and Lawson, which receded from the jury pardon doctrine.5 Thus, a majority consisting of four justices-Justices Lewis, Canady, Polston, and Lawson-concurred in the abrogation of the jury pardon doctrine. Both Justices Pariente and Quince recognized in their respective separate opinions that the majority of the court had abrogated the jury pardon doctrine.6 The petitioner in Dean moved for rehearing, arguing that the court should not have abrogated the jury pardon doctrine without at least allowing supplemental briefing on the issue. The State argued in its response that the court properly applied a harmless error analysis.7 The court denied rehearing and issued mandate. We thus must conclude that the Florida Supreme Court has abrogated the jury pardon doctrine. We recognize that the Fourth District in Caruthers concluded to the contrary, and we certify conflict with Caruthers .
The supreme court majority's grounds for abrogating the jury pardon doctrine are ably set out in Justice Polston's concurring opinion in Dean . 230 So.3d at 425-26 (Polston, J., concurring). We will not repeat the court's reasoning here. See also, e.g., Haygood v. State , 109 So.3d 735, 749 (Fla. 2013) (Canady, J., dissenting) ("Nothing in the Florida Constitution, the Florida Statutes, or the Florida Rules of Criminal Procedure supports our recognition of such a right of access to a partial jury *44nullification."); Sanders v. State , 946 So.2d 953, 958 (Fla. 2006) (recognizing that a jury pardon is "essentially 'a not guilty verdict rendered contrary to the law and evidence' and is an aberration."). Dean applies to this case. See Smith v. State , 598 So.2d 1063, 1066 (Fla. 1992) ("Thus, we hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.").
Because the error here was not preserved, we could affirm without further discussion. However, the Dean court applied a harmless error analysis, agreeing with Justice Polston's observation that even the failure to give a requested instruction on a necessarily lesser-included offense is harmless "because the defendant is not entitled to an opportunity for a jury pardon." Dean , 230 So.3d at 426. Applying the same reasoning, the giving of the instruction for attempted manslaughter by act deemed erroneous under Montgomery is harmless error. The evidence adduced below strongly supports that conclusion.
The jurors here were correctly instructed that "If you return a verdict of guilty, it should be for the highest offense which has been proven beyond a reasonable doubt." Fla. Std. Jury Instr. (Crim.) 3.12. The jurors were correctly instructed that attempted second-degree murder involved intentional commitment "of an act which would have resulted in the death of [victim]." The instruction for attempted second-degree murder also correctly noted that "it is not necessary for the State to prove the defendant had an intent to cause death."
Appellant's counsel did not challenge identity or the fact of the attack, but argued lack of intent to kill, lack of premeditation, and no use of a weapon. The jury received evidence that could support a finding of intent to kill in the victim's testimony that Appellant had previously threatened to kill her if she left him, and in the brutality of Appellant's attack. The jury received evidence of premeditation in the timing of the attack as a response to the domestic violence injunction, in Appellant's traveling to the victim's house in spite of the injunction and timing his arrival to coincide with a part of her known routine that left her alone and vulnerable, and in his bringing a jack handle with him for the attack. The jury received evidence that the jack handle bore the DNA of both Appellant and his victim, improbable beyond staggering odds unless Appellant had, in fact, beaten the victim with the jack handle. Appellant's counsel nevertheless succeeded in persuading the jury not to return a verdict for the crime charged, attempted first-degree premeditated murder. Appellant has already avoided a life sentence by the jury's finding of guilt as to attempted second-degree murder with a weapon, without intent to kill. The evidence very strongly supports the offense of conviction. We affirm Appellant's conviction and sentence.
II. WAIVER .
As noted above, even if the Florida Supreme Court had not abrogated the jury pardon doctrine, we would adhere to our original holding that the giving of the jury instruction held to be erroneous in Montgomery is an error that can be waived, and that it was waived on the specific facts presented here. We emphasize that our waiver analysis is limited to the specific factors at play here. These factors include the legal anomaly that results when counsel's failure to object to a fundamentally erroneous jury instruction has the legal effect of benefiting the defendant; the fact *45that this jury instruction had been declared erroneous and replaced with a valid instruction several years before this trial; and the fact that experienced counsel represented to the court that he had read and had no objections to the jury instructions, and was actively involved in reviewing and revising the jury instructions as a whole.
A. The Error: Intent To Kill Is Not An Element Of Manslaughter .
The erroneous jury instruction used in this case had been invalidated several years before this trial occurred; and while we do not hold that the passage of time alone can create a waiver of objection to an erroneous instruction, we find that it is one among several factors that are appropriately considered. The Florida Supreme Court held in 2010-nearly four years before the trial in this case-that the standard jury instruction then in effect for voluntary manslaughter by act erroneously included an element of intent to kill, by instructing that the defendant must have committed an act or procured the commission of an act that was "intended to cause the death" of the victim. Montgomery , 39 So.3d at 259-60 (approving this Court's 2009 decision reaching the same conclusion, Montgomery v. State , 70 So.3d 603 (Fla. 1st DCA 2009) ). After Montgomery , the supreme court issued a new interim manslaughter instruction that eliminated the erroneous reference to an intent to kill, instead stating that the jury must find the defendant "intentionally committed an act or acts that caused the death of" the victim. In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7 , 41 So.3d 853, 854-55 (Fla. 2010).8
Although Montgomery involved completed rather than attempted voluntary manslaughter by act, the correct instruction for the attempted crime obviously also would not include intent to kill because the distinction between completed and attempted manslaughter is not a difference in the elements of manslaughter but only a difference in whether the crime was prevented or otherwise failed to reach completion. See § 777.04(1), Fla. Stat. (2014) ("A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt ...."). Thus, the proper instruction for attempted voluntary manslaughter by act was settled in Montgomery as well, by this Court in 2009, and affirmed by the Florida Supreme Court in 2010. Montgomery , 70 So.3d at 607, aff'd , 39 So.3d at 259-60.
Even if there had been any doubt about the correct instruction for attempted voluntary manslaughter by act, we had made it clear by 2009 in Lamb v. State , 18 So.3d 734 (Fla. 1st DCA 2009). In Lamb , we held that an instruction including intent to kill was erroneous also as to attempted manslaughter by act. 18 So.3d at 735. On review of our decision in Lamb based on conflict with a decision of the Fourth District Court of Appeal, the Florida Supreme Court approved Lamb and held that it was fundamental error to instruct a jury that attempted manslaughter by act requires intent to kill. Williams v. State, 123 So.3d 23, 30 (Fla. 2013).
In spite of these developments in the law that occurred as many as five years *46before the trial below, the manslaughter jury instruction used here retained the incorrect element of intent to kill. It was virtually identical to that disapproved in Williams , which stated "[Defendant] 'committed an act which was intended to cause the death ' of [Victim]." 123 So.3d at 25 (emphasis added) (quoting Lamb , 18 So.3d at 735 ). The jury instruction here also was substantively the same as that disapproved in Montgomery , which included the element that "(Defendant) intentionally caused the death of (victim)." Montgomery , 39 So.3d at 256. This jury instruction clearly was erroneous. The giving of this erroneous jury instruction constituted fundamental error under prior supreme court precedent. Williams , 123 So.3d at 25, 27 ; Montgomery , 39 So.3d at 258.
B. The Fundamental Error Was Waived .
Fundamental error in a jury instruction can be waived. The Florida Supreme Court has held that "objecting to erroneous instructions is the responsibility of a defendant's attorney, and the attorney's failure to object to such instructions can properly constitute a waiver of any defects." Ray v. State , 403 So.2d 956, 961 (Fla. 1981). See also , e.g. , Moore , 114 So.3d at 489, review dismissed , 181 So.3d at 1186-87 (finding waiver as to erroneous manslaughter instruction where defense counsel affirmatively agreed to it in spite of having been expressly advised of the Montgomery decision). It is axiomatic that waiver "is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right." Major League Baseball v. Morsani , 790 So.2d 1071, 1077 n.12 (Fla. 2001). The existence of a waiver in a given context is a question of fact. Hill v. Ray Carter Auto Sales, Inc. , 745 So.2d 1136, 1138 (Fla. 1st DCA 1999).
In Moore , we certified a question of great public importance as to what facts will constitute a waiver of an erroneous jury instruction, but the supreme court declined to review our decision. Moore , 181 So.3d at 1186-87. We must, therefore, continue to resolve the question of waiver on a case-by-case basis in light of the specific facts and the totality of circumstances of each case. These circumstances here include (1) the existence of a plausible tactical reason for allowing the erroneous instruction to go to the jury; (2) the long time that had passed since the jury instruction had been invalidated; and (3) defense counsel's conduct including his express representation that he had read the jury instructions and had no objections to them; and his substantial involvement in formulating, revising, and approving the jury instructions as a whole after discussion before trial, before closing arguments, and after closing arguments. We hold that on the totality of circumstances presented here, the error in the manslaughter jury instruction was waived.
(1) The Law Will Not Incentivize Error.
Very significant to our analysis is the existence of a plausible strategic reason for allowing the erroneous instruction to go to the jury. Our extension of Moore to find a waiver on these facts and circumstances is informed in significant part by the importance of avoiding situations that incentivize defense counsel to commit error. We have observed that asserting the fundamental error argument against an unobjected-to jury instruction creates a "bizarre incentive" for defense counsel to allow erroneous instructions to go to the jury:
To reverse under these facts would guarantee a defendant a new trial anytime there was any error in an instruction. The consequence of such a rule *47would essentially obligate a defense attorney to stand mute and, if necessary, agree to an erroneous instruction .... In fact, under such precedent, an attorney who brings a faulty jury instruction to the court's attention or refuses to agree to an instruction that misstates the law would sacrifice his client's opportunity for a second trial and would risk being found incompetent as a consequence.
Calloway v. State , 37 So.3d 891, 896-97 (Fla. 1st DCA), review denied , 51 So.3d 1154 (Fla. 2010) ; see also Joyner v. State , 41 So.3d 306, 307 (Fla. 1st DCA 2010) ("Encouraging counsel to invite such error subverts the trial process and is counter to the interests of justice."); Facin v. State , 188 So.3d 859, 862 (Fla. 1st DCA 2015) (repeating concerns of Calloway and Joyner and deferring ineffective assistance of counsel claim to post-conviction proceedings because "[w]e cannot say with confidence there is no conceivable tactical explanation for the conduct of [defendant's] trial counsel" in allowing erroneous instruction to go to the jury).
Reviewing courts should not countenance counsel's tactical inaction. See Morales v. State , 170 So.3d 63, 67 (Fla. 1st DCA 2015) (allowing courts to consider claims of ineffective assistance of counsel on direct appeal only in those rare cases where there is "an inconceivable tactical explanation for the conduct"). We will not promote the possibility of "deliberate sandbagging." Ferry v. State , 507 So.2d 1373, 1375 (Fla. 1987) (finding a valid waiver of defendant's right to participate in jury selection when he voluntarily left the room). To protect against tactical manipulation of the legal system, we cannot take an overly narrow view of what constitutes a waiver of a fundamentally erroneous jury instruction. We have no indication from the Florida Supreme Court that it intended such consequences in its cases dealing with jury instruction error.
(2) The Law Was Well Settled.
It is also significant to our analysis that by the time this case came to trial in February of 2014, our decision in Montgomery was five years old, and Lamb was rendered only a few months after Montgomery . The Florida Supreme Court's decision approving our decision in Montgomery was four years old. The supreme court's amended jury instruction was likewise four years old. In re Amendments , 41 So.3d at 854-55. The supreme court's decision in Williams was sixteen months old.
It is difficult to believe that defense counsel was unaware of these five-year-old changes in the law directly relevant to his practice. He was obligated to stay abreast of developments in his practice area and was chargeable with knowledge of Montgomery and Williams . See R. Regulating Fla. Bar 4-1.1, Competence ("A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."), and cmt. ("Maintaining competence. To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, ... and comply with all continuing legal education requirements to which the lawyer is subject."); see also Johnson v. State, 796 So.2d 1227, 1228-29 (Fla. 4th DCA 2001) ("A reasonably effective criminal defense attorney must keep himself or herself informed of significant developments in the criminal law ....") (cited in Monroe v. State , 191 So.3d 395, 404 n.7 (Fla. 2016) (noting that defense counsel should have been aware of decision rendered two years prior to the trial at issue) ). Taken together, the passage of time since the instruction was invalidated, *48coupled with counsel's obligation to stay abreast of that important development in the law and his failure to object, support the conclusion that the objection is deemed waived. Ray , 403 So.2d at 961.
(3) Counsel's Approval and Involvement.
Defense counsel's active involvement in developing the jury instructions also supports our finding of waiver. Although Appellant trivializes his counsel's involvement in development of the final instructions, counsel's involvement went well beyond the superficial. This was not a situation of a word or phrase missing from an instruction that could be overlooked easily, nor was it a situation where both sides superficially agreed to the proposed instructions and never revisited them. Rather, the entire incorrect instruction was present from the beginning, and the record reflects that counsel was actively, repeatedly involved in reviewing and revising the instructions multiple times from before the trial through submission of the case to the jury. Counsel for both parties had discussed jury instructions before the charge conference and had agreed on some changes. Defense counsel asserted at the beginning of trial that he had read and had no objections to the jury instructions. As the discussion developed, he requested changes and additions, adding three lesser battery offenses to the instructions and verdict form, and thereby gave the jury plenty of opportunities to exercise its pardon power if it was inclined to do so. He consulted with his client, and made a stipulation to obtain instructions on more favorable lesser offenses.
During a recess after the state rested, the parties placed on the record additional changes to the jury instructions discussed between counsel with respect to the instruction for aggravated battery and the definition of a weapon for the weapon aggravation instruction, specifically including the voluntary manslaughter instruction. Defense counsel agreed to have the court read the instructions to the jury before closing arguments. No other discussion focused on the manslaughter instruction in general or specifically on the erroneous intent-to-kill language in that instruction.
The court orally instructed the jury prior to closing arguments, without objection from either party. The court instructed the jury on the original charge of attempted first-degree premeditated murder with a weapon, and on eight lesser offenses: attempted first-degree premeditated murder, attempted second-degree murder with a weapon, attempted second-degree murder, attempted voluntary manslaughter with a weapon, attempted voluntary manslaughter, aggravated battery with a deadly weapon or great bodily harm, felony battery with great bodily harm, and battery.
Closing arguments focused on the charged crime of attempted first-degree premeditated murder, with the state arguing among other things that intent to kill was obvious from the evidence including the nature and severity of the victim's injuries. Defense counsel argued several times that the evidence did not prove Appellant intended to kill the victim. After closing arguments, the trial court called to counsels' attention several discrepancies where the instructions did not list all lesser-included offenses, and the court proposed to instruct the jury to note those instances and refer to the verdict form for complete information. Defense counsel agreed with the proposal. The jury returned a verdict finding Appellant guilty of attempted second-degree murder with a weapon. Defense counsel polled the jury, which confirmed its verdict.
The parties dispute whether these facts support a finding that defense counsel *49waived the error in the manslaughter instruction. Neither Montgomery nor Williams addressed the question of whether the fundamental error in giving the improper jury instructions was waived. This Court in Moore addressed waiver of the specific erroneous jury instruction at issue here. 114 So.3d at 489-90. Moore involved two errors in an instruction on manslaughter as a lesser-included offense, including its use of the erroneous requirement that the state prove intent to kill. Id. at 488-89. We refused to grant a new trial due to the erroneous intent element in the jury instruction, finding on the facts of Moore that counsel waived the error. The trial court and prosecutor in Moore expressly raised the inclusion of the intent language as a possible error, to which defense counsel did not respond; but they ended up agreeing to use the standard instruction from 2008, which did include the intent language. The court read the instruction out loud and defense counsel agreed with it, declining to add anything to it. The instructions were given with no objections.
On our review of Moore's direct appeal, we concluded that the facts established a waiver of the fundamental error arising from including the element of intent in the manslaughter instruction. Moore , 114 So.3d at 489. Of particular weight was the fact that the trial court expressly directed defense counsel's attention to the intent element as a potential error, and counsel agreed to using the language anyway because it was in the standard instructions (albeit an outdated version, which no one mentioned). See also Joyner , 41 So.3d at 307 (finding waiver where counsel specifically agreed with the erroneous instruction for manslaughter by act, and referenced it in his closing argument). More recently, we found a waiver of this same jury instruction error where defense counsel agreed to the instruction at the charging conference and declined to challenge the language though he had several opportunities to do so, and the parties discussed Montgomery . Facin , 188 So.3d at 860-61, review denied , No. SC15-1234, 2016 WL 3002446 (Fla. May 25, 2016). In Moore , Joyner , and Facin , then, the error in the manslaughter jury instruction was addressed expressly, making a clear case for waiver at one end of the factual spectrum.
We do not, however, construe our holdings in these cases as limited to their specific facts; and specifically we do not hold that a waiver results only when the record expressly reflects that defense counsel was aware of Montgomery or Williams and still failed or refused to object to the jury instruction. Other facts may suffice to demonstrate a waiver, and we find the facts and circumstances of this case demonstrated a waiver. We are aware that as a general rule a waiver will not result from mere ignorance or unknowing acquiescence, but we find that more than mere unknowing acquiescence occurred here.
We note again that the Florida Supreme Court declined to address these issues on review of our decision in Moore , instead discharging jurisdiction after briefing and oral argument even though the briefs and argument raised these and related issues. 181 So.3d at 1186-87. While we do not hold that mere inaction suffices to constitute a waiver, we also refuse to go so far as to require facts equaling or approaching those of Moore before finding a waiver. On the facts of this case, we find that defense counsel waived the fundamental error in the improper jury instruction for manslaughter, and therefore we affirm Appellant's conviction and sentence on this alternative basis.
III. CERTIFIED CONFLICT .
We certify conflict with Caruthers v. State , 232 So.3d 441 (Fla. 4th DCA 2017).
*50IV. CERTIFIED QUESTION OF GREAT PUBLIC IMPORTANCE .
We ask the Florida Supreme Court to resolve the following question, which we certify is of great public importance:
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 ?
See Moore , 114 So.3d at 493 (certifying same question).
AFFIRMED; CONFLICT CERTIFIED; QUESTION OF GREAT PUBLIC IMPORTANCE CERTIFIED .
Wetherell, J., concurs; Wolf, J., concurs in part and dissents in part with opinion.