Opinion
No. 79-1374/T4-614.
January 28, 1981. On Rehearing April 8, 1981.
Appeal from the Circuit Court, Orange County, Richard B. Keating, J.
Richard L. Jorandby, Public Defender, and Catheleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.
We must reverse this case on the authority of Tascano v. State, 393 So.2d 540 (Fla. 1980) (rehearing pending), and remand it for a new trial because those persons "who have preserved this point on appeal, receive the benefit on this interpretation of the rule." Tascano. The interpretation referred to in Tascano is one which says if an accused at trial requests a jury instruction in regard to the penalties he could receive, it is reversible error for the trial judge not to so instruct. Fla.R.Crim.P. 3.390(a). There was a timely objection made to the failure to give the instruction. Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980). The Florida Supreme Court made this applicable even to cases pending on appeal. It is not applicable to persons who did not preserve it for appeal nor for those who did raise it on appeal but whose appeal has been concluded.
REVERSED AND REMANDED.
DAUKSCH, C.J., ORFINGER and SHARP, JJ., concur.
ON MOTION FOR REHEARING
Appellee has filed a motion for rehearing based upon the allegation Tascano is not final because the motion for rehearing in that case is yet undisposed. It has now been finally decided. Tascano v. State, 393 So.2d 540, (Fla. 1980) (rehearing denied, February 27, 1981). We certify in this case the same question we certified in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), as being of great public importance, to wit:
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 FLORIDA RULE OF CRIMINAL PROCEDURE 3.390(a) IF THE APPELLANT'S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?See also Palmes v. State, 397 So.2d 648 (Fla. 1981).
ORFINGER and SHARP, JJ., concur.