JAMES HENRY JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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ORFINGER, Judge.
Because the failure to give the instruction on penalties was properly preserved for appeal under Tascano v. State, 393 So. 2d 540 (Fla.1980), (rehearing denied), and Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980), we must reverse the conviction and order a new trial. However, because the evidence of appellant’s guilt is clear and the failure to give the instruction appears to be harmless, we certify to the Supreme Court of Florida the same question already certified in Gee v. State, No. 80-336 (Fla. 5th DCA February 11,1981), viz:
CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a), FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?
REVERSED and REMANDED. QUESTION CERTIFIED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
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Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)…ell v. State, 396 So. 2d 270 (Fla. 3d DCA 1981); Bailey v. State, 393 So. 2d 24 (Fla. 3d DCA 1981); Rodriguez v. State, 385 So. 2d 1019 (Fla. 3d DCA 1981) (opinions silent, but records reflect trials concluded before June 5, 1980); Johnson v. State, 394 So. 2d 1121 (Fla. 5th DCA 1981); Meeks v. State, supra; Bassett v. State, 392 So. 2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980) (implicit in opinions that trials concluded pre- Tascano). . Williams’ request for a penalty instru…1 / 2
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Studstill v. State, 397 So. 2d 753 (Fla. 1st DCA 1981)…supreme court in favor of the appellant’s contention. We, therefore, reverse the convictions and remand for further proceedings. The Fifth District Court of Appeal has certified this very issue to the supreme court in Johnson v. State of Florida, 394 So. 2d 1121, Gray, Jr. v. State, (Fla.App.) 400 So. 2d 468; and Haislip, Jr. v. State, (Fla.App.) 400 So. 2d 473. We join the Fifth District and certify the following question to the Florida Supreme Court: [*755] and the appellate court determines the error cou…
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Heggs v. State, 397 So. 2d 369 (Fla. 5th DCA 1981)…d remand for a new trial, but we certify the following question to be of great public importance (Art. V, § 3(b)(4), Fla.Const.; Fla.R.App.P. 9.030(a)(2)(A)(v)) as also certified in Gee v. State, 400 So. 2d 466 (Fla. 5th DCA 1981); Johnson v. State, 394 So. 2d 1121 (Fla. 5th DCA 1981), and Haislip v. State, 400 So. 2d 473 (Fla. 5th DCA 1981): CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 and SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY I…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980)