Lewis v. State

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Escambia County. Linda L. Nobles, Judge.

          Andy Thomas, Public Defender, and Mark Graham Hanson, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief - Criminal Appeals, Tallahassee, for Appellee.

          PER CURIAM.

         Ervin 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), ^[1] 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.

         Forcing 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.

         We, 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.

         I. Facts

         In this 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.

         The 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 Precedent

         As previously mentioned, the rationale for not applying the harmless error analysis under these circumstances specifically conflicts with the holdings in Galindez and Hurst.

         In 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.

         Nevertheless, 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.

         Setting out the harmless error analysis pursuant to Chapman v. California, 386 U.S. 18 (1967), and State v. ...