STATE of Florida, Petitioner, v. Wiley JONES, Jr., Respondent, 377 So. 2d 1163

ALDERMAN, Justice. We accept jurisdiction to review the decision of the district court in Jones v. State, 363 So.2d 1123 (Fla.2d DCA 1978), because of its apparent conflict with Zuberi v. State, 343 So.2d 664 (Fla.3d DCA 1977). We approve the decision of the district court in Jones and hold that the trial court’s refusal in this felony-murder case to give any instruction on the elements of the underlying felony of robbery was fundamental error not waived by the defendant’s failure to object. The trial judge instructed the jury on felony murder without giving any instruction on the underlying felony of robbery.

Although the defendant did not object, the omission was brought to the trial judge’s attention by the state attorney. On appeal, the district court reversed on the authority of Robies v. State, 188 So.2d 789 (Fla.1966). It concluded there was ample evidence that Jones had committed a homicide in the perpetration of the felony of robbery and that application of the felony-murder rule was most appropriate, but it made no finding on the sufficiency of the evidence to establish premeditated murder.

The State contends only that the trial court did not commit reversible error in failing to define robbery under a felony murder instruction when the defendant neither requested the instruction nor objected to the court’s refusal to so instruct. The State does not contend that the trial court’s error was made harmless because there was sufficient evidence to establish premeditated murder. As a general rule, appellate courts will not review a matter raised for the first time on appeal. Fla.R.Crim.P. 3.390(d). In Castor v.

State, 365 So.2d 701 (Fla.1978), we pointed out that the requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. Its purpose is to place the trial judge on notice that error may have been committed and to provide him an opportunity to correct it at an early stage of the proceedings. Only in the rare case of fundamental error is the defendant’s right to appeal preserved without a contemporaneous objection.

In this case, the crime of robbery was an essential part of the felony-murder theory upon which the jury was instructed to decide the defendant’s guilt. Although the elements of this underlying felony need not be explained with the same particularity that would have been required if it had been the primary crime charged, it is essential that it be defined sufficiently to ensure the accused a fair trial. Robles v. State.

Since proof of the elements of robbery was necessary in order to convict the defendant under the felony-murder theory, the court was obligated at least to give some minimum instruction on these elements. Our recent decision in Vasil v. State, 374 So.2d 465 (Fla.1979), is distinguishable. There, the defendant, charged with first-degree murder on alternate theories of premeditation and felony murder based upon the crime of rape, claimed the trial court erred by not instructing on the element of penetration.

Reaffirming the rule that it is not necessary to instruct on the elements of the underlying felony with the same particularity that would be required if that offense were the primary crime charged, we found the trial judge’s instructions, which recited all of the elements of the crime of rape, to be adequate. In the present case, there was a complete failure to give any instruction on the elements of the underlying felony of robbery. This was fundamental error.

It is essential to a fair trial that the jury be able to reach a verdict based upon the law and not be left to its own devices to determine what constitutes the underlying felony. Robles v. State. Accordingly, the judgment of the district court is affirmed, and, to the extent that Zuberi v. State may conflict with this opinion, it is disapproved. It is so ordered. ENGLAND, C. J., and BOYD, OVER-TON and SUNDBERG, JJ., concur. ADKINS, J., dissents with an opinion.