Doe v. State

PER CURIAM.

Appellant having properly preserved the point on appeal, we reverse and remand for further proceedings pursuant to Tascano v. State, 393 So.2d 540 (Fla.1980); however, in accordance with this court’s opinion in Studstill v. State, 397 So.2d 753 (Fla. 1st 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?

McCORD, BOOTH and SHIVERS, JJ., concur.

Decision affirmed, Fla., 406 So.2d 1118.