
    James ANTHONY, Appellant, v. STATE of Florida, Appellee.
    No. 92-580.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1993.
    Rehearing Denied June 10, 1993.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HARRIS and GRIFFIN, JJ., concur.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially.

This is a case of first degree murder. The evidence of guilt of appellant was based solely on circumstantial evidence; there was no direct evidence that appellant committed the crime. The circumstances pointing to appellant’s guilt were strong and had the court given the old circumstantial evidence charge, no longer required to be given, In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 595 (Fla.1981); Rembert v. State, 445 So.2d 337, 339 (Fla.1984), the jury most likely would have found appellant guilty. That said, I think the trial judge should have given a circumstantial evidence charge; it was within his discretion to do so and it is still good law that the state should be required to exclude every reasonable hypothesis of innocence when a conviction is based solely on circumstantial evidence.

Because the trial court was not required to give the instruction I cannot say it erred.  