Florida District Courts of Appeal, 1981

Gray v. State

Gray v. State
Florida District Courts of Appeal · Decided March 18, 1981 · Cobb, Orfinger, Upchurch
400 So. 2d 468; 1981 Fla. App. LEXIS 18945 (Southern Reporter, Second Series)

Gray v. State

Opinion of the Court

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.

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