ERVIN J. LEWIS, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Escambia County. Linda L.
Thomas, Public Defender, and Mark Graham Hanson, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau
Chief - Criminal Appeals, Tallahassee, for Appellee.
J. Lewis, appellant, asserts that the trial court committed
per se reversible error when it refused to instruct the jury
on the necessarily lesser-included offense of simple battery
when the underlying charge was battery within a detention
facility. § 784.082(3), Fla. Stat. (2014). We are
constrained to reverse pursuant to the Florida Supreme
Court's rulings in State v. Wimberly, 498 So.2d
929 (Fla. 1986), and State v. Abreau, 363 So.2d 1063
(Fla. 1978),  which held that
the failure to instruct on the next immediate necessarily
lesser-included offense is per se reversible error, even
though no reasonable jury could have determined that the
battery in this case did not take place in a detention
facility. We believe the rationale of Wimberly and
Abreau, when applied to the facts of this case, is
irreconcilable with the sound reasoning expressed in
Galindez v. State, 955 So.2d 517 (Fla. 2007), and
Hurst v. State, 202 So.3d 40 (Fla. 2016). In both of
those cases, the supreme court held that even though the
trial courts' errors reached constitutional proportions,
because there was no reasonable possibility that the errors
contributed to the verdict, they could be reviewed under the
harmless error standard of review.
a retrial in this and similar cases, where the undisputed
evidence establishes that the greater crime was committed, is
a waste of judicial resources, is inconsistent with Florida
Supreme Court precedent where the harmless error doctrine has
been applied, and cannot be justified on the basis of the
jury pardon doctrine.
therefore, also certify a question of great public importance
concerning whether failure to instruct a jury on the next
immediate necessarily lesser-included offense may constitute
harmless error where no reasonable jury could have returned a
verdict for the lesser-included offense.
case, appellant was charged with battery upon a jail visitor
or other detainee under sections 784.082 and 784.03, Florida
Statutes (2014). Section 784.082(3) results in
reclassification of the battery from a misdemeanor to a
third-degree felony because of its occurrence within a jail
or detention facility.
evidence is uncontroverted that appellant and the victim were
detainees at the time of the battery. In fact, they were
cellmates. Therefore, custody status was not an element of
contemplation for the jury. The only issue for jury
deliberation was whether a battery occurred. Accordingly,
appellant's conviction reflects a specific finding by the
jury of satisfaction of the battery elements. Appellant's
request for a new trial, citing Wimberly, requires a
complete disregard of the following: 1) the undisputed fact
that appellant was an inmate; 2) the undisputed fact that the
victim, appellant's cellmate, was also an inmate; and 3)
the fact that the jury was limited in its deliberation to
determining whether appellant committed simple battery, as
the fact that appellant was an inmate was uncontested.
Appellant desires and Wimberly supports an award of
a new trial - essentially a second at-bat with the same
pitcher, but a different fielding team. This scenario defies
logic and irrationally places form over substance. II.
Inconsistency with Supreme Court of Florida's
previously mentioned, the rationale for not applying the
harmless error analysis under these circumstances
specifically conflicts with the holdings in Galindez
Galindez, the Florida Supreme Court applied a
harmless error analysis to affirm a sentence despite the jury
not specifically making a determination of penetration in a
lewd assault on a minor charge, explaining that in light of
clear and uncontested record evidence, "no reasonable
jury would have returned a verdict finding there was no
penetration." Galindez, 955 So.2d at 524.
Although the error in Galindez was an
Apprendi/Blakely Sixth Amendment violation,
the Galindez court applied a harmless error analysis
by relying on a case similar to the one at hand that held,
"[w]here the defendant alleged that error regarding a
lesser included offense deprived him of a jury pardon,
'[g]iven the evidence adduced at trial, the error also
was harmless, since it is inconceivable that any rational
jury could have returned a verdict finding that there was no
firearm involved in the commission of the charged
offenses.'" Galindez, 995 So.2d at 524
(quoting Delvalle v. State, 653 So.2d 1078, 1079
(Fla. 5th DCA 1995) (citing State v. DiGuilio, 491
So.2d 1129 (Fla. 1986))). Following Galindez, this
court has twice requested clarification from the Florida
Supreme Court on its implied recession from a strict per se
reversible error application in this context of the failure
to instruct on a necessarily lesser-included offense. See
Lindsay v. State, 1 So.3d 270 (Fla. 1st DCA 2009);
Riley v. State, 25 So.3d 1 (Fla. 1st DCA 2008).
However, review was denied.
citing Galindez, the Florida Supreme Court recently
extended harmless error analysis to the review of death
penalty cases. See Hurst v. State, 202 So.3d 40
(Fla. 2016). On remand from the United States Supreme Court
with specific instructions to review the violation of
Hurst's Sixth Amendment rights for harmless error, the
Florida Supreme Court relied upon Washington v.
Recuenco, 548 U.S. 212 (2006), in noting "that
failure to submit a sentencing factor to the jury in
violation of Apprendi, Blakely, and the
Sixth Amendment was not structural error that would always
result in reversal." Hurst, 202 So.3d at 67.
out the harmless error analysis pursuant to Chapman v.
California, 386 U.S. 18 (1967), and State v.