Meeks v. State

ON MOTION FOR REHEARING

DAUKSCH, Chief Judge.

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.