Gray v. State

Full title: ARCHIE B. GRAY, JR., APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Mar 18, 1981

400 So. 2d 468 (Fla. Dist. Ct. App. 1981)

Opinion

No. 80-353.

March 18, 1981.

Appeal from Circuit Court, Seminole County; Tom Waddell, Jr., Judge.

James B. Gibson, Public Defender, James R. Wulchak, Asst. Public Defender, and Burke D. Chester, Sp. Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

REVERSED and REMANDED but, as in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 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 COBB, JJ., concur.