Opinion
No. VV-116.
April 6, 1981. Rehearing Denied June 19, 1981.
Appeal from Circuit Court, Alachua County; Osee R. Fagan, Judge.
Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla. 1980).
McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.
ON MOTION FOR REHEARING
Appellee contends on motion for rehearing that we should not reverse the trial court on the basis of Tascano v. State, 393 So.2d 540 (Fla. 1980), because the evidence pertaining to appellant's guilt was overwhelmingly established by the record on appeal, and, therefore, any error in the trial court's refusal to give appellant's requested charge on penalties was harmless error.
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. The Supreme Court held this instruction to be mandatory. We, therefore, 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)?
The motion for rehearing is denied.
McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.