JACK LAVATT A/K/A JACK LEVATT, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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OVERTON, Justice.
This cause is here on petition for certiorari, supported by certificate of the Second District Court of Appeal 300 So. 2d 300 that its decision is one which involves a question of great public interest, specifically whether Rule 3.390, FRCrP, mandatorily requires a trial judge to include, when requested, in the instructions to the jury the penalty fixed by law for the offense for which the accused is charged.
Subsequent to the filing of this petition, we answered that question in the negative in Johnson v. State, 308 So. 2d 38 (Fla.1975).
The identical question having been answered, the writ is hereby discharged on the basis of Johnson v. State, supra.
ADKINS, C. J., and ROBERTS and McCAIN, JJ., concur. ENGLAND, J., concurs with an opinion.
ENGLAND, Justice
(concurring).
I concur in the result of this case and the policy articulated in Johnson v. State, 308 So. 2d 38 (FIa.1975). I do not believe that the desired policy should be reached, however, by construing as “directory” the plain, mandatory language of Rule 3.-390(a). We promulgated the Rule, and if we are dissatisfied now with the way it is worded then we should change it. We have the power and should assume the responsibility to make our own rules as clear and readable as humanly possible. There will always be situations when we will have to decide whether to apply one of our rules, but there should never be a situation in which our rules either say what we do not mean or mean what we do not say.
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Jones v. State, 332 So. 2d 615 (Fla. 1976)…e three issues discussed, and with the concurring opinion of Justice Sundberg, I am again compelled to record my dissatisfaction with the process by which we modify our rules on a case by case basis to achieve selective results. See Lavatt v. State, 316 So. 2d 261 (Fla.1975) (concurring opinion). Under Rule 3.310 of the Florida Rules of Criminal Procedure, which we promulgated, both the state and any criminal defendant are granted what appears to be an unconditional right to challenge each individual prospec…
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State v. Terry, 336 So. 2d 65 (Fla. 1976)…oncurs with an opinion, with which SALFI, Circuit Judge, concurs. . The rule decided in Johnson, supra, has been followed by this Court in Winston v. State, 308 So. 2d 40 (Fla.1975); Dorminey v. State, 314 So. 2d 134 (Fla.1975) and Lavatt v. State, 316 So. 2d 261 (Fla.1975). Also by the District Courts of Appeal in Boykin v. State, 305 So. 2d 831 (Fla.App. 1st 1975); Howard v. State, 306 So. 2d 153 (Fla.App. 1st 1975); McIntyre v. State, 306 So. 2d 160 (Fla.App. 4th 1975); Ballard v. State, 307 So. 2d 826 (F…
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Tascano v. State, 363 So. 2d 405 (Fla. 1st DCA 1978)…d 850 (Fla. 1st D.C.A. 1967) and Holmes v. State, 181 So. 2d 586 (Fla. 3d D.C.A. 1965). . See Johnson v. State, 308 So. 2d 38 (Fla.1975). Accord, State v. Terry, 336 So. 2d 65 (Fla.1976); Huckeba v. State, 322 So. 2d 30 (Fla.1975); Lavatt v. State, 316 So. 2d 261 (Fla.1975); Dorminey v. State, 314 So. 2d 134 (Fla.1975); Winston v. State, 308 So. 2d 40 (Fla.1975); Golson v. State, 353 So. 2d 195 (Fla. 3d D.C.A. 1977); MacMainor v. State, 328 So. 2d 264 (Fla. 1st D.C.A. 1976); Dowis v. State, 326 So. 2d 196 (F…
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- Johnson v. State, 308 So. 2d 38 (Fla. 1974)
- Lavatt v. State, 300 So. 2d 300 (Fla. 2d DCA 1974)