AARON JOHNSON, A/K/A AARON FERGUSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Aaron Johnson appeals his second-degree murder conviction, arguing the trial judge erred by failing to instruct the jury on the penalty for the crime despite his request. The Florida District Court of Appeal affirms the conviction but certifies a question to the Florida Supreme Court regarding whether Rule 3.390(a)'s mandate to include penalty information in jury charges is mandatory or discretionary.
The court affirmed Johnson's conviction based on prior judicial precedent interpreting the rule as permitting judicial discretion, but certified the question to the Florida Supreme Court as a matter of great public interest due to ambiguity in the rule's interpretation.
[1] A trial court must instruct the jury on the penalty fixed by law for the offense for which the accused is on trial.
[2] Prior judicial construction of a rule may guide its interpretation even if the plain language appears to suggest a different meaning.
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Join FLexlaw to unlock all legal intelligence“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.”
The mandatory language of Rule 3.390(a) requiring inclusion of penalty information in jury instructions, which is the central provision at issue in the appeal.
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Join FLexlaw to unlock all legal intelligenceAaron Johnson was tried for and convicted of second-degree murder. During trial, Johnson requested that the judge instruct the jury on the penalty for…
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GRIMES, Judge.
Appellant was tried for and convicted of second degree murder. His only point on appeal is that despite his request the judge did not instruct the jury on the penalty for the crime with which he was charged.
Rule 3.390(a) of the Florida Rules of Criminal Procedure, 33 F.S.A. provides that:
“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.” (emphasis added)
The predecessor of this rule was § 918.-10(1), F.S.A., which contained identical language insofar as pertinent to this case.
In Simmons v. State, 1948, 160 Fla. 626, 36 So. 2d 207, the Supreme Court interpreted this statute as permitting the trial court the discretion of whether to give the charge. This decision was followed in Holmes v. State, Fla.App.3d, 1965, 181 So. 2d 586, and McBride v. State, Fla.App.lst, 1967, 197 So. 2d 850.
In spite of the language of Simmons suggesting that the jury’s function is limited to that of determining guilt, appellant argues that the real basis for the decision in Simmons was that the legislature had no right to dictate court procedure. However, the Supreme Court does have the right to dictate court procedure, and by having chosen to adopt a rule on the subject, appellant argues that the Supreme Court meant the language of this rule to be interpreted according to its “obvious” meaning.
In light of the previous judicial construction of the same language, we feel obliged to affirm. However, we are certifying to the Supreme Court the question herein as a matter of great public interest, not because we think it should be mandatory that the jury be instructed on the penalty for the crime which is charged, but because we think there may be doubt concerning the interpretation of this rule.
We believe most trial judges are of the opinion they have the discretion whether or not to give the charge. If they are correct the Supreme Court will be in a position to confirm this fact and may even wish to alter the wording of the rule. On the other hand, if the Supreme Court intended that the instruction be given in every instance, there is no other way to enforce the rule in light of the prevailing interpretation to the contrary. Since the Supreme Court will have the last word on this case and since that court also adopts the Rules of Criminal Procedure, the certification of the case should enable the matter to be set at rest.
The judgment is affirmed.
MANN, C. J., and McNULTY, J., concur.
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Johnson v. State, 308 So. 2d 38 (Fla. 1974)…FERRIS, Circuit Judge. This cause is here on petition for writ of certiorari, supported by certificate of the District Court of Appeal, Second District, that its decision (Johnson v. State, 297 So. 2d 35) is one which involves a question of great public interest. Pursuant to Fla. Const., Article V, Sec. 3(b)(3), F.S.A., we have jurisdiction. The petitioner in this case was tried by jury, convicted, and sentenced to life imprisonment on an informati…
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Winston v. State, 297 So. 2d 36 (Fla. 2d DCA 1974)…PER CURIAM. Appellant’s third point on appeal is identical to the point raised on appeal in Johnson v. State, 297 So. 2d 35, opinion filed in this court on June 26, 1974. In Johnson, supra, we certified the question to our Supreme Court as a matter of great public interest. We therefore certify in the case sub jud-ice the same question as was certified in Johnson, supra…
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Cooper v. Louie L. Wainwright, 308 So. 2d 182 (Fla. 4th DCA 1975)…ion was preserved for appellate review. At the time oral arguments in this case were presented, the First and Second District Courts of Appeal had reached contrary conclusions on this question. The Second District in Johnson v. State, Fla. App.1974, 297 So. 2d 35, held that the language of the rule was directive and not mandatory and permitted exercise of discretion by the trial court on whether to charge on penalties. The First District in Terry v. State, Fla.App., 302 So. 2d 142 (Opinion filed October 22,…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. State, 160 Fla. 626 (Fla. 1948)
- Holmes v. State, 181 So. 2d 586 (Fla. 3d DCA 1965)
- Kimberl v. State Farm Mut. Auto. Ins. Co., 197 So. 2d 850 (Fla. 1st DCA 1967)
- McBRIDE v. State, 197 So. 2d 850 (Fla. 1st DCA 1967)