LARRY LEE HEGGS, A/K/A LARRY WICKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Heggs was convicted at trial despite conclusive evidence of guilt, but the trial court failed to instruct the jury on penalties as required by Florida Rule of Criminal Procedure 3.390(a). Although the appellate court determined the error was harmless and did not injuriously affect substantial rights, it was constrained by prior precedent to reverse and remand for a new trial while certifying a question of great public importance regarding whether harmless error analysis applies to the failure to give required penalty instructions.
The court reversed and remanded for a new trial, constrained by Tascano v. State, despite finding the error did not injuriously affect substantial rights and resulted in no miscarriage of justice. The court certified to the Florida Supreme Court the question of whether harmless error analysis applies to penalty instruction failures when guilt is conclusively established.
[1] A trial court's failure to provide a jury instruction on penalties, when requested and preserved, constitutes error.
[2] An appellate court may consider the harmless error doctrine when reviewing a trial court's failure to provide a jury instruction on penalties.
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Join FLexlaw to unlock all legal intelligence“the error complained of did not injuriously affect the substantial rights of the appellant (§ 924.38, Fla.Stat. (1979)) and resulted in no miscarriage of justice (§ 59.041, Fla.Stat. (1979))”
Establishes that the appellate court found the penalty instruction omission was harmless error under Florida's harmless error statutes
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Join FLexlaw to unlock all legal intelligenceAppellant Heggs was tried and the evidence of his guilt was conclusive. The trial court did not give a jury instruction on penalties, despite a proper…
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COWART, Judge.
At trial the evidence of appellant’s guilt was conclusive. However, the trial court did not give the jury an instruction on penalties (Fla.R.Crim.P. 3.390(a); Tascano v. State, 393 So. 2d 540 (Fla.1980) (rehearing denied Feb. 27, 1981) after a request and the point was preserved by a proper and timely objection (Bassett v. State, 392 So. 2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So. 2d 250 (Fla.2d DCA 1980)). Appellant was convicted of the offense for which he was on trial. James v. State, 393 So. 2d 1138 (Fla.3d DCA 1981). After an examination of all the appeal papers and the entire case it appears to us that the error complained of did not injuriously affect the substantial rights of the appellant (§ 924.38, Fla.Stat. (1979)) and resulted in no miscarriage of justice (§ 59.041, Fla.Stat. (1979)). Notwithstanding, we are constrained (Hoffman v. Jones, 280 So. 2d 431 (Fla.1973)) by Tascano to reverse and 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 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?
If the State timely invokes the discretionary jurisdiction of the Supreme Court (Fla.R.App.P. 9.120(b)) to review the question certified the mandate in this case will be stayed until that jurisdiction is remanded.
REVERSED and remanded. Question certified.
FRANK D. UPCHURCH Jr. and SHARP, JJ., concur.
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Citator
Cited By
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State v. Heggs, 406 So. 2d 1116 (Fla. 1981)…[*1117] PER CURIAM. Affirmed. 397 So. 2d 369 (Fla.App.). Murray v. State, 403 So. 2d 417 (Fla.1981). ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980)
- James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981)
- GEE v. State, 400 So. 2d 466 (Fla. 5th DCA 1981)
- Theordore Agustus Bassett v. State, 392 So. 2d 1025 (Fla. 5th DCA 1981)
- Haislip v. State, 400 So. 2d 473 (Fla. 5th DCA 1981)
- Johnson v. State, 394 So. 2d 1121 (Fla. 5th DCA 1981)