Opinion
No. 79-1746/T4-707.
June 3, 1981.
Appeal from Circuit Court, Orange County; Frank N. Kaney, Judge.
Richard L. Jorandby, Public Defender, Jorge Labarga, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.
REVERSED and REMANDED but, as in Gee v. State, ___ So.2d ___ No. 80-336 (Fla. 5th DCA February 11, 1981), we certify the following question to the Florida Supreme Court:
CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a), FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT'S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?
ORFINGER and COWART, JJ., concur.