BRUCE D. MOYERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by refusing to instruct the jury on maximum and minimum penalties, requiring a new trial. The court also found the exclusion of duress defense testimony insufficient to show error on appeal.
Appellant was convicted of introducing contraband into a correctional institution. The trial court refused to instruct the jury on maximum and minimum…
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PER CURIAM.
The judgment of conviction entered on jury verdict must be vacated and the case remanded for new trial because the trial court erroneously refused to instruct the jury on maximum and minimum penalties as required by the Supreme Court in Tascano v. State, 393 So. 2d 540 (Fla.1980). Defense counsel adequately preserved the point on appeal by requesting the charge and excepting or objecting to the court’s refusal to give it.
Appellant’s second point is that the trial court erred in excluding proffered testimony that was said to support a duress defense. No reason appears why duress may not be a defense * to a charge of introducing contraband into a correctional institution. Section 944.47, Florida Statutes (1979). But appellant’s proffer was not sufficiently detailed to permit judgment of whether the excluded testimony tended to show duress in fact, so justifying submitting the issue to the jury. Though the question may be more substantially raised on a new trial, we find no error in the record submitted. See Koontz v. State, 204 So. 2d 224 (Fla. 2d DCA 1967); Hall v. State, 136 Fla. 644, 187 So. 392 (1939); Stevens v. State, 397 So. 2d 324 (Fla. 5th DCA 1981).
REVERSED and REMANDED.
ROBERT P. SMITH, JR., LARRY G. SMITH and JOANOS, JJ., concur. *
See generally W. LaFave & A. Scott, Criminal Law, Duress § 49, at 374-81 (1972); R. Perkins, Perkins on Criminal Law, Compulsion (Duress) 951-55 (2d ed. 1969); Cawthon v. State, 382 So. 2d 796 (Fla. 1st DCA 1980), pet. for rev. den., 388 So. 2d 1110 (Fla.1980).
PER CURIAM.
The State has filed a motion for rehearing contending that we failed to consider the harmless error doctrine in reversing the trial court for failure to instruct on maximum and minimum penalties as required by Tascano v. State, 393 So. 2d 540 (Fla.1980).
From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent in that case, the trial court’s error in this respect cannot be considered harmless. However, as requested by appel-lee, we certify to the Supreme Court of Florida the following question is of great public importance:
Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?
The motion for rehearing is denied.
ROBERT P. SMITH, Jr., C. J., and LARY G. SMITH, and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mungin v. State, 458 So. 2d 293 (Fla. 1st DCA 1984)…, dissents, with MILLS, BOOTH, THOMPSON and BARFIELD, JJ., concurring. . We have previously recognized that the defense of duress or necessity may be an appropriate defense to a charge of introducing contraband into a state prison, Moyers v. State, 400 So. 2d 769 (Fla. 1st DCA 1981), although we there held it inapplicable because the proffered testimony was not sufficiently detailed to determine whether it tended to show duress in fact.…1 / 2
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State v. Moyers, 406 So. 2d 1120 (Fla. 1981)…PER CURIAM. Affirmed. 400 So. 2d 769. Murray v. State, 403 So. 2d 417 (Fla.1981). ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.…
Authorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Hall v. State, 136 Fla. 644 (Fla. 1939)
- Merlin Evans v. State, 204 So. 2d 224 (Fla. 3d DCA 1967)
- Johnson v. State, 204 So. 2d 224 (Fla. 3d DCA 1967)
- Cawthon v. State, 382 So. 2d 796 (Fla. 1st DCA 1980)
- Stevens v. State, 397 So. 2d 324 (Fla. 5th DCA 1981)