per se reversal rule in Florida

1985Because we do not find the evidence of the defendant’s guilt so overwhelming as to render harmless the prosecutor’s argument, we need not question whether the Supreme Court of Florida in State v. Murray, 443 So.2d 955 (Fla.1984), has receded from the per se reversal rule.

1984Then in Rowell v. State, 450 So.2d 1226 (Fla. 5th DCA 1984), and DiGuilio v. State, 451 So.2d 487 (Fla. 5th DCA 1984) the Fifth District Court of Appeal wondered if the holding in Murray, supra, signaled an abandonment of the per se reversal rule in cases where there was a comment on a defendant's right to remain silent.

1984The state contends that the harmless error doctrine, rather than the per se reversal rule, should apply based on the recent United States Supreme Court case of U.S. v. Hasting, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983).

1984The state contends that the harmless error doctrine, rather than the per se reversal rule, should apply based on the recent United States Supreme Court case of U.S. v. Hasting, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983).

2011Rather, we established the per se reversal rule based on our assumption that `no appellate court can be certain that errors of this type are harmless.'" Id. (quoting Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977)).

2011Rather, we established the per se reversal rule based on our assumption that ‘no appellate court can be certain that errors of this type are harmless.’ ” Id. (quoting Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977)).

1985NOTES [1] In Hasting , the Supreme Court affirmatively rejected a per se reversal rule, relying on its prior decision in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), where it had declared that even constitutional errors could be deemed harmless in some cases.

1985NOTES [1] In Hasting , the Supreme Court affirmatively rejected a per se reversal rule, relying on its prior decision in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), where it had declared that even constitutional errors could be deemed harmless in some cases.

1985Compare, e.g., Burns v. State, 466 So.2d 1207 (Fla. 3d DCA 1985); Grissom v. State, 469 So.2d 151 (Fla. 3d DCA 1985.

1985As noted in Rowell and a recent case of this court, Grissom v. State, 469 So.2d 151 (Fla. 3d DCA 1985), the Florida Supreme Court in Murray did not expressly recede from the entrenched rule that any comment on the exercise by the accused of his right to remain silent is reversible error without regard to the harmless error doctrine.

2011For example, in Reddick v. State, 394 So.2d 417, 418 (Fla.1981), the supreme court announced just such a rule, stating that “[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.” As explained in Johnson v. State, 53 So.3d 1003 (Fla.2010), “per se reversible error” is a rule adopted for some types of error involving issues that are properly preserved for appellate review by motion or objection in the trial court, but where the affected party would have difficulty demonstrating prejudice on appeal.

2009Because our original opinion in Jana seemed to suggest a per se rule of reversal, even where liability was clear, we clarified on rehearing that “we did not intend to create a per se reversal rule.” We recognized that “improper questioning as to traffic citations may not, in every case, amount to such prejudicial error that a mistrial must be granted or a judgment reversed on appeal.” Id. at 468 .

2005The majority does not cite to any evidence that abusive denial of cause challenges was a problem before Trotter , and there is no evidence to support the existence of such a problem in those jurisdictions that require the showing of harm. [21] See Conde v. State, 860 So.2d 930, 941 (Fla.2003); Pietri v. State, 644 So.2d 1347, 1352 (Fla.1994); Knowles v. State, 632 So.2d 62, 65 (Fla.1993). [22] As the United States Supreme Court has said, peremptory challenges "are but one state-created means to the constitutional end of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42, 57

2005The majority does not cite to any evidence that abusive denial of cause challenges was a problem before Trotter , and there is no evidence to support the existence of such a problem in those jurisdictions that require the showing of harm. [21] See Conde v. State, 860 So.2d 930, 941 (Fla.2003); Pietri v. State, 644 So.2d 1347, 1352 (Fla.1994); Knowles v. State, 632 So.2d 62, 65 (Fla.1993). [22] As the United States Supreme Court has said, peremptory challenges "are but one state-created means to the constitutional end of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42, 57

2005There are a significant number of cases where Florida district courts of appeal have reversed convictions and ordered new trials where defendants arguably received a trial by a fair and impartial jury. [26] These reversals illustrate the point that "constitutionalizing the impairment of peremptory challenges" runs counter to the Court's decision in Ross and is hardly "inconsequential" in view of the reality that "[t]rial courts ... rule on cause challenges by the minute," United States v. Martinez-Salazar, 146 F.3d 653, 661 (9th Cir.1998) (Rymer, J., concurring in part and dissenting in part),

2005There are a significant number of cases where Florida district courts of appeal have reversed convictions and ordered new trials where defendants arguably received a trial by a fair and impartial jury. [26] These reversals illustrate the point that "constitutionalizing the impairment of peremptory challenges" runs counter to the Court's decision in Ross and is hardly "inconsequential" in view of the reality that "[t]rial courts ... rule on cause challenges by the minute," United States v. Martinez-Salazar, 146 F.3d 653, 661 (9th Cir.1998) (Rymer, J., concurring in part and dissenting in part),

2005However, the United States Supreme Court later clarified this dicta in Ross v. Oklahoma, 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988), when it held that a per se reversal rule is not constitutionally required.

2005However, the United States Supreme Court later clarified this dicta in Ross v. Oklahoma, 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988), when it held that a per se reversal rule is not constitutionally required.

1997Even if this were a golden rule argument, in Cleveland Clinic Florida v. Wilson, 685 So.2d 15 (Fla. 4th DCA 1996), we receded from previous case law which applied a per se reversal test to such comments.

1987See Scurry v. State, 489 So.2d 25 (Fla. 1986); and Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984). [2] The district court improperly construed our decision in State v. Mischler, 488 So.2d 523 , as setting forth a per se reversal rule.

1987Pursuant to Rousseau's motion for rehearing, however, the district court reversed its previous ruling and remanded for resentencing based upon its perception that certain language employed by this Court in State v. Mischler set forth a per se reversal rule. 489 So.2d at 829 .

1987As recently clarified in State v. Rousseau, 509 So.2d 281 (Fla. 1987), Mischler should not be read to have introduced such a standard of review into the sentencing guidelines context.

1987See Scurry v. State, 489 So.2d 25 (Fla. 1986); and Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984). [2] The district court improperly construed our decision in State v. Mischler, 488 So.2d 523 , as setting forth a per se reversal rule.

1986This Court adopted Jones and the per se rule in Bennett v. State, 316 So.2d 41 (Fla. 1975), and has approved the rule in other cases.

1986Gordon v. State, 104 So.2d 524 (Fla. 1958); Trafficante v. State, 92 So.2d 811 (Fla. 1957); Way v. State, 67 So.2d 321 (Fla. 1953); Rowe v. State, 87 Fla. 17 , 98 So. 613 (1924).

1986Gordon v. State, 104 So.2d 524 (Fla. 1958); Trafficante v. State, 92 So.2d 811 (Fla. 1957); Way v. State, 67 So.2d 321 (Fla. 1953); Rowe v. State, 87 Fla. 17 , 98 So. 613 (1924).

1986Gordon v. State, 104 So.2d 524 (Fla. 1958); Trafficante v. State, 92 So.2d 811 (Fla. 1957); Way v. State, 67 So.2d 321 (Fla. 1953); Rowe v. State, 87 Fla. 17 , 98 So. 613 (1924).