per se rule in Florida

2014See, e.g., Power v. State, 992 So. 2d 218, 222 (Fla. 2008) (“[N]either - 32 - this Court nor the Supreme Court has recognized mental illness as a per se bar to execution.” (quoting Diaz v. State, 945 So. 2d 1136, 1151 (Fla.), cert. denied, 549 U.S. 1103 (2006)).

2014See, e.g., Power v. State, 992 So.2d 218, 222 (Fla.2008) (“[N]either this Court nor the Supreme Court has recognized mental illness as a per se bar to execution.”) (quoting Diaz v. State, 945 So.2d 1136, 1151 (Fla.), cert. denied, 549 U.S. 1103 , 127 S.Ct. 850 , 166 L.Ed.2d 679 (2006)).

2014See Errickson v. State, 855 So.2d 700, 702 (Fla. 4th DCA 2003) (“Courts have routinely held that an officer’s use of emergency lights ‘evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.’ ”) (quoting Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002)); Houston v. State, 925 So.2d 404, 407 (Fla. 5th DCA 2006); cf. G.M. v. State, 19 So.3d 973, 979 (Fla.2009) (rejecting a per se rule that use of emergency lights constitutes a seizure under the Fourth Amendment, but holdin

2008Following this pronouncement in Popple , and not pursuant to any application of a per se rule 10 as opined by the majority, Florida courts have (before today) uniformly and consistently held that “an officer’s use of his or her emergency lights generally evidences an investigatory stop rather than a consensual encounter.” Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002) (citing Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999)).

2008The United States Supreme Court has, however, noted in Dray-ton and Bostick that such per se rules are inappropriate in the Fourth Amendment context and that “[t]he proper inquiry necessitates a consideration of ‘all the circumstances surrounding the encounter.’ ” Drayton, 536 U.S. at 201 , 122 S.Ct. 2105 (quoting Bostick, 501 U.S. at 439 , 111 S.Ct. 2382 ).

2008The United States Supreme Court has, however, noted in Dray-ton and Bostick that such per se rules are inappropriate in the Fourth Amendment context and that “[t]he proper inquiry necessitates a consideration of ‘all the circumstances surrounding the encounter.’ ” Drayton, 536 U.S. at 201 , 122 S.Ct. 2105 (quoting Bostick, 501 U.S. at 439 , 111 S.Ct. 2382 ).

1999See, e.g., Nibert v. State, 574 So.2d 1059, 1063 (Fla.1990); Smalley v. State, 546 So.2d 720 (Fla.1989); Blakely v. State, 561 So.2d 560 (Fla.1990).

1993See, e.g., Nihert v. State, 574 So.2d 1059, 1063 (Fla. 1990); Smalley v. State, 546 So.2d 720 (Fla.1989); Blakely v. State, 561 So.2d 560 (Fla.1990).

2011But “a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” Id. (emphasis added) (citing DiGuilio, 491 So.2d at 1134-35 ).

2011This Court reiterated that “a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” Id. at 1020 (citing DiGuilio , 491 So.2d at 1134— 35) (emphasis added).

2012This is because “[s]ueh a per se rule strips the trial court of its obligation to assess any alleged violations in the context of a defendant’s case.” Id.

2011However, to the extent that Meade and the cases on which it relied stand for the proposition that a per se rule exists prohibiting revocation of probation for failure, allegedly caused by transportation problems, to keep a single appointment, we believe they have been implicitly overruled by the subsequent decision of our supreme court in State v. Carter, 835 So.2d 259 (Fla.2002).

2014See, e.g., Power v. State, 992 So. 2d 218, 222 (Fla. 2008) (“[N]either - 32 - this Court nor the Supreme Court has recognized mental illness as a per se bar to execution.” (quoting Diaz v. State, 945 So. 2d 1136, 1151 (Fla.), cert. denied, 549 U.S. 1103 (2006)).

2014See, e.g., Power v. State, 992 So.2d 218, 222 (Fla.2008) (“[N]either this Court nor the Supreme Court has recognized mental illness as a per se bar to execution.”) (quoting Diaz v. State, 945 So.2d 1136, 1151 (Fla.), cert. denied, 549 U.S. 1103 , 127 S.Ct. 850 , 166 L.Ed.2d 679 (2006)).

2022Therefore, we default to the harmless error test and reserve a per se rule “only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 1995).

2006Id. at 1020 .

2010The Thomas court also emphasized that the “particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record” and that “an opportunity to contribute after the instruction has been given is insufficient.” 730 So.2d at 668 (quoting Mills v. State, 620 So.2d 1006, 1008 (Fla.1993) (internal citations omitted)).

1998We reaffirmed the per se reversible error standard in Mills v. State, 620 So.2d 1006 (Fla.1993), [2] explaining that "[t]he particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record. " Id. at 1008 (quoting Colbert, 569 So.2d at 435).

1986The following question has been certified as being of great public importance: Has the Supreme Court of Florida, by its agreement in State v. Murray, 443 So.2d 955 (Fla.1984), with the analysis of the supervisory powers of appellate courts as related to the harmless error rule as set forth in United States v. Hasting, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983), receded from the per se rule of reversal explicated in Harris v. State, 438 So.2d 787 (Fla.1983), David v. State, 369 So.2d 943 (Fla.1979), and Trafficante v. State, 92 So.2d 811 (Fla.1957)?

1986The court certified the following question as one of great public importance: Has the Florida Supreme Court, by its agreement in State v. Murray, 443 So.2d 955 (Fla.1984), with the analysis of the supervisory powers of appellate courts as related to the harmless error rule as set forth in United States v. Hasting, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983), receded by implication from the per se rule of reversal explicated in Donovan v. State, 417 So.2d 674 (Fla.1982)? 466 So.2d at 1210 .

1995In adopting a per se rule of reversal where communications between the court and the jury occur outside the presence of the attorneys and the defendant, the supreme court explained that "any communication with the jury outside the presence of the prosecutor, the defendant, and defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless." Id.

1990This per se error rule was first recognized in Ivory v. State, 351 So.2d 26, 28 (Fla. 1977), where we held that it is prejudicial error for a trial judge to respond to a request covered under rule 3.410 without counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury's request. *435 In Ivory , we noted that any communication with the jury outside the presence of the prosecutor, the defendant, and the defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless.

2001See also Bradley v. State, 513 So.2d 112, 114 (Fla.1987) (supreme court rejected the state's argument that all that is required under rule 3.410 is presence of counsel, stating the "right to participate, set forth in Ivory , includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored."); Curtis v. State, 480 So.2d 1277, 1278 (Fla.1985) (supreme court rejected the state's argument that reversal should not be required when the record is adequate to show lack of prejudice); Hannah v. State, 732 So.2d 3,

1993Atwater contends that the judge's response violated the per se rule of Curtis v. State, 480 So.2d 1277 (Fla. 1985), and Bradley v. State, 513 So.2d 112 (Fla. 1987), in that counsel was not given the opportunity to assist in formulating the answer.

2012In Connor , we noted that “[t]o the extent that Connor is arguing that he cannot be executed because of mental conditions that are not insanity or mental retardation, the issue has been resolved adversely to his position.” Connor, 979 So.2d at 867 (citing Diaz v. State, 945 So.2d 1136, 1151 (Fla.) cert. denied, 549 U.S. 1103 , 127 S.Ct. 850 , 166 L.Ed.2d 679 (2006) (indicating that neither the United States Supreme Court nor this Court has recognized mental illness as a per se bar to execution)).

2010In Con-nor, we noted that “[t]o the extent that Connor is arguing that he cannot be executed because of mental conditions that are not insanity or mental retardation, the issue has been resolved adversely to his position.” Connor, 979 So.2d at 867 (citing Diaz v. State, 945 So.2d 1136, 1151 (Fla.) cert. denied, 549 U.S. 1103 , 127 S.Ct. 850 , 166 L.Ed.2d 679 (2006) (indicating that neither the United States Supreme Court nor this Court has recognized mental illness as a per se bar to execution)).

2001See, e.g., Mills v. State, 620 So.2d 1006 (Fla.1993); State v. Franklin, 618 So.2d 171 (Fla.1993); Williams v. State, 488 So.2d 62 (Fla.1986); Curtis v. State, 480 So.2d 1277 (Fla.1985).

1992Williams v. State, 488 So.2d 62, 64 (Fla. 1986) reaffirmed the per se rule announced in Ivory , but held that "[c]ommunications outside the express notice requirements of rule 3.410 should be analyzed using harmless error principles." Cherry v. State, 572 So.2d 521, 522 (Fla. 1st DCA 1990) (emphasis added) found reversible error because defense counsel did not have "notice and an opportunity to be heard regarding the appropriate response" to a jury question.

2018Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990) (citing Allen v. United States, 164 U.S. 492 (1896)). 2 In Tomlinson v. State, 584 So. 2d 43 (Fla. 4th DCA 1991), the Fourth District followed United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977), and adopted a per se rule that giving a second Allen charge is fundamental error.

1991The Court elected, on the basis of their supervisory powers, to adopt a per se rule, `conclud[ing] that as a sound rule of practice it is reversible error to repeat an Allen charge in a federal prosecution in [the Ninth] circuit after a jury has reported itself deadlocked and has not itself requested a repetition of the instruction.' 550 F.2d at 1163 .

2014See Errickson v. State, 855 So.2d 700, 702 (Fla. 4th DCA 2003) (“Courts have routinely held that an officer’s use of emergency lights ‘evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.’ ”) (quoting Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002)); Houston v. State, 925 So.2d 404, 407 (Fla. 5th DCA 2006); cf. G.M. v. State, 19 So.3d 973, 979 (Fla.2009) (rejecting a per se rule that use of emergency lights constitutes a seizure under the Fourth Amendment, but holdin

2008See Armatage v. State, 954 So.2d 669 (Fla. 1st DCA 2007); Koppelman v. State, 876 So.2d 618 (Fla. 4th DCA 2004); Errickson v. State, 855 So.2d 700 (Fla. 4th DCA 2003); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999).

2008See Johnson v. State, 438 So.2d 774, 777 (1983) (holding that trial court did not abuse its discretion in refusing to allow a professor of psychology to testify as an expert witness in the field of eyewitness identification); see also McMullen v. State 714 So.2d 368, 372 (Fla.1998) (" Johnson could be interpreted as a per se rule of inadmissibility of this type of testimony.").

1998Despite our findings in these cases, Johnson could be interpreted as a per se rule of inadmissibility of this type of testimony given our statement that "[w]e hold that jury is fully capable of assessing a witness' ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony." 438 So.2d at 777 .

2011But "a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful." Id. (emphasis added) (citing DiGuilio, 491 So.2d at 1134-35 ).

2011But “a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful.” Id. (emphasis added) (citing DiGuilio, 491 So.2d at 1134-35 ).

2011Bd. of Orange Cnty. v. Palowitch, 367 So.2d 730, 731 (Fla. 4th DCA 1979) (school board’s unilateral increase of length of work year, as established by past practice, was a per se violation).

1993FFUAPD v. State of Florida, 16 FPER 21115 (1990); Palowitch v. Orange County School Bd., 3 FPER 280 (1977), affirmed, 367 So.2d 730 (Fla. 4th DCA 1979).