Kemper v. State

404 So. 2d 1184, 1981 Fla. App. LEXIS 21503

• Court: District Court of Appeal of Florida
• Decided: October 28, 1981
• Docket: No. 79-2490
• Status: Published

Opinions

OPINION ON REHEARING

PER CURIAM.

In our opinion of September 2, 1981, we reversed this case for a new trial on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980). Upon reconsideration we are of the view that the error of the trial court in refusing to instruct the jury as to the potential penalties for the primary offense charged was harmless. The appellant requested only an instruction on penalties for the main offense charged. He was convicted of a lesser offense. Under the circumstances we believe the error was harmless. Lewis v. State, 399 So.2d 473 (Fla. 4th DCA 1981). As in Lewis, we recognize that the law is not entirely clear as to the extent¹ that the harmless error rule may be applied to Tascano type errors, and for the reasons expressed in Lewis, we certify the following as a question of great public importance:

May an appellate court find that the failure of the trial court to instruct the jury pursuant to the provisions of Rule 3.390(a) of the Florida Rules of Criminal Procedure constitutes harmless error?

Accordingly, our opinion of September 2, 1981, is hereby withdrawn and we affirm the judgment of the trial court.

ANSTEAD and HERSEY, JJ., concur. HURLEY, J., concurs specially with opinion.

1 . Compare Murray v. State, 403 So.2d 417 (Fla.1981) with Welty v. State, 402 So.2d 1159 (Fla.1981).