JOHN BILL FAIRWEATHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant appealed his sexual battery conviction on four grounds. The appellate court affirmed findings on constitutionality of the relevant statute, the in-court identification procedure, and exclusion of defense counsel from a lineup, but reversed and remanded because the trial court erroneously refused to instruct the jury on maximum and minimum sentences.
The court affirmed the conviction on the first three issues, finding no constitutional defects or rights violations. However, the court reversed and remanded for a new trial on the fourth issue, holding that the trial court erred in refusing to instruct the jury on maximum and minimum sentences, and this error could not be deemed harmless.
[1] A statute is presumed constitutional.
[2] An in-court identification is not impermissibly suggestive if it does not give rise to a substantial likelihood of irreparable mistaken identification.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court's error in this respect cannot be deemed harmless”
Establishes that the refusal to instruct on maximum and minimum sentences was non-harmless error requiring reversal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was convicted of sexual battery. The victim made an in-court identification of the appellant. A lineup procedure was conducted where the wit…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Harmless Error Doctrine cases and more on FLexlaw
McCORD, Judge.
Appellant appeals his conviction of sexual battery, raising four points for review. We affirm in part and reverse in part.
We first consider appellant’s challenge to the trial court’s finding that § 947.16, Florida Statutes, is constitutional and we find no error. See Arnett v. State, 397 So. 2d 330 (Fla. 1st DCA, 1981).
Next, appellant contends that the in-court identification made of him by the victim was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable mistaken identification. From our examination of the record, we find that point to be without merit.
We have also considered appellant’s assertion that the trial court erred in denying his motion in limine to suppress any testimony relating to the voice and corporeal identification procedures because the prosecutor excluded the defense counsel from that portion of the lineup procedure where the witness gave his reaction to the lineup in violation of appellant’s constitutional rights to effective assistance of counsel. We find that assertion to be without merit also. See U.S. v. White, 617 F. 2d 1131 (5th Cir. 1980), and U.S. v. Banks, 485 F. 2d 545 (5th Cir. 1973), cert. denied 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974).
Appellant further contends that the trial court erred in its refusal to instruct the jury, pursuant to Florida Rule of Crimi nal Procedure 3.390(a) as to the maximum and minimum sentences which could be imposed upon appellant. The record reflects that appellant objected to the trial court’s refusal to give that instruction, and thus the point was preserved for review. In Tascano v. State, 393 So. 2d 540 (Fla.1980), the Supreme Court ruled that a trial court’s refusal to give such an instruction upon request was error. Appellee here contends that the error was harmless. From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent thereto, the trial court’s error in this respect cannot be deemed harmless. Therefore, we must reverse and remand for a new trial. However, we certify to the Supreme Court of Florida that 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)?
Affirmed in part, reversed in part, and remanded for a new trial with the above-posed question being certified to the Supreme Court.
SHIVERS and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Fairweather, 408 So. 2d 567 (Fla. 1981)…PER CURIAM. Affirmed. 400 So. 2d 1279. Murray v. State, 403 So. 2d 417 (Fla.1981). ADKINS, A. C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.…
Authorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Arnett v. State, 397 So. 2d 330 (Fla. 1st DCA 1981)
- Banks v. United States, 416 U.S. 987 (U.S. 1974)
- Da Silva v. United States, 416 U.S. 987 (U.S. 1974)
- United States v. Lathia Paul Banks, Jr., 485 F.2d 545 (1st Cir. 1973)
- United States v. Jess Harlan White, 617 F.2d 1131 (5th Cir. 1980)