ROGER E. CARUTHERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2017-12-13
No. 4D16-1567
Gerber, C.J., and May, J., concur.
232 So. 3d 441 Florida District Court of Appeal, Fourth District (2017) Caution
Cited by 14 cases
Topics
Jury Pardon Binding Precedent Lesser Included Offense Harmless Error

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Opinion of the Court
Levine, J.

ON MOTION FOR REHEARING

Levine, J.

In a motion for rehearing, the state for the first time cites Dean v. State, 230 So.3d 420, 2017 WL 3774647 (Fla. Aug. 31, 2017), an opinion which issued before oral argument in this case. In a concurring opinion in. Dean, three justices stated that “where the evidence supports the charged offense as well as the requested instruction on a necessarily lesser included offense, any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon.” See id. (Polston, J., concurring). Because Dean did not involve, a majority, we are compelled to follow Daugherty v. State, 211 So.3d 29 (Fla. 2017). See Santos v. State, 629 So.2d 838, 840 (Fla. 1994) (“Under the Florida Constitution, both a binding decision and a binding prec-edential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision.”) (citing art. V, § 3(a), Fla. Const.) (footnotes omitted); Accordingly, the motion for rehearing is denied.

Gerber, C.J., and May, J., concur.

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  • Kadeem Quaishawn Hart v. State, 255 So. 3d 921 (Fla. 1st DCA 2018)
  • Knight v. State, 267 So. 3d 38 (Fla. 1st DCA 2016)
    …and rehearing en banc.1 We deny Appellant's motion, withdraw our prior opinion, and in its place substitute the following opinion affirming Appellant's conviction and sentence on two alternative grounds. We certify conflict with Caruthers v. State , 232 So. 3d 441 (Fla. 4th DCA 2017). We also re-certify as a question of great public importance a question we certified in Moore v. State , 114 So. 3d 486, 489 (Fla. 1st DCA 2013), review dismissed , 181 So. 3d 1186, 1186-87 (Fla. 2016). * * * Appellant challeng…
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