JOHN EDWARD GEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Edward Gee appeals his burglary conviction, arguing the trial judge failed to give a mandatory jury instruction on penalties despite his counsel's request. The court reverses and remands for a new trial, but certifies to the Florida Supreme Court a question regarding whether harmless error doctrine can apply to this instructional error when guilt is clearly established.
The failure to give the mandatory penalties instruction constitutes reversible error that requires a new trial, following the Supreme Court's decision in Tascano v. State. However, the court certifies to the Florida Supreme Court whether harmless error doctrine under Florida Statutes sections 924.33 and 59.041 should apply when guilt is clearly established.
[1] A defendant's request for a jury instruction on the maximum and minimum sentences for the offense charged, and objection to the denial of that request, is sufficient to p…
[2] Florida Rule of Criminal Procedure 3.390(a) mandates that a trial court instruct the jury on the maximum and minimum sentences for the offense charged upon request of eit…
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Join FLexlaw to unlock all legal intelligence“it is mandatory that the trial judge give the penalties instruction if requested by either trial counsel”
Establishes the mandatory nature of the penalties instruction under Tascano v. State and Rule 3.390(a)
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Join FLexlaw to unlock all legal intelligenceGee was convicted of burglary of a conveyance (breaking into a car). Trial counsel requested an instruction regarding the maximum and minimum penaltie…
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DAUKSCH, Chief Judge.
This is an appeal from a conviction of burglary of a conveyance: breaking into a car. One issue is raised on appeal: the failure of the trial judge to give a requested instruction regarding the maximum and minimum penalties the accused was facing if convicted.
As was clearly said in Tascano v. State, 393 So. 2d 540 (Fla. 1980), (rehearing pending), it is mandatory that the trial judge give the penalties instruction if requested by either trial counsel. Quoting Rule 3.390(a), Florida Rules of Criminal Procedure, our supreme court ruled, in effect, it could not be deemed harmless error for the trial court to fail or refuse to so instruct although we said otherwise in Murray v. State, 378 So. 2d 111 (Fla. 5th DCA 1980), and other cases. The harmless error we spoke of in Murray was in reference to the anomalous situation which has been caused to exist by instructing the jury, on the one hand, as to the particular penalty the accused is subject to and then, on the other hand, telling the jury to disregard any consideration of the penalty. This is not the ordinary harmless error doctrine but a specific, we thought, type of harmless error as we mention in the opinion and in the concurring opinion. Justice Alderman in his dissent in Tascano reiterates our reasoning. But the Murray and Tascano decisions do not treat the possibility of a case where the evidence of guilt is overwhelming, and a conviction is obviously certain, the giving of the instruction notwithstanding. Tascano does not discuss the possibility that even if the charge was given the accused would be found guilty. So that leaves us in the quandary we will discuss at the end of this opinion.
After Tascano, the Second District Court of Appeal determined that in order to properly preserve the error for appeal, it is incumbent upon trial counsel not only to request the instruction but to object to the court’s failure to give the instruction. Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980). We have agreed with the decision in Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980), and of course, followed the decision in Tascano v. State, 393 So. 2d 540 (Fla. 1980), (rehearing pending).
Because Tascano has deemed the failure to give the instruction error and because we do not determine this case to fit within the exception to Tascano as carved out by Kelly, we must reverse the conviction and remand this case for another trial. We reverse because we have read Tascano very carefully and interpret it most cautiously and conservatively to require a new trial because of the words “it is mandatory that an instruction be given. ...” Hoffman v. Jones, 280 So. 2d 431 (Fla.1973).
However, because we are aware the court did not discuss the traditional harmless error doctrine and because we are convinced it should apply in this case we certify to the Supreme Court of Florida the following question which we deem to be of great public importance:
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.
ORFINGER and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Williams v. State, 400 So. 2d 471 (Fla. 5th DCA 1981)…he evidence against appellant is strong and clear. However, Tascano [*473] leaves us in doubt as to the applicability of the traditional harmless error rule set forth in sections 59.041 and 924.33, Florida Statutes (1979). As we did in Gee v. State, 400 So. 2d 466 (Fla. 5th DCA 1981), we therefore certify to the Supreme Court the following question which we deem to be of great public importance: CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (197…
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Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)…v. State, supra (opinion on motion for rehearing filed April 8, 1981); Haislip v. State, 400 So. 2d 473 (Fla. 5th DCA 1981); Gray v. State, 400 So. 2d 468 (Fla. 5th DCA 1981); Johnson v. State, 394 So. 2d 1121 (Fla. 5th DCA 1981), and Gee v. State, 400 So. 2d 466 (Fla. 5th DCA 1981). .Compare the Federal jury instructions: “Under the Federal system of criminal procedure you are not to concern yourself in any way with the sentence the defendant might receive if you should find him guilty....” Devitt & Blackm…
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Gray v. State, 400 So. 2d 468 (Fla. 5th DCA 1981)…FRANK D. UPCHURCH, Jr., Judge. REVERSED and REMANDED but, as in Gee v. State, 400 So. 2d 466 (Fla. 5th DCA 1981), we certify the following question to the Florida Supreme Court: 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…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities 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)
- Murray v. State, 378 So. 2d 111 (Fla. 5th DCA 1980)