harmless error in Florida

2026See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively 5 stated, that there is no reasonable possibility that the error contributed to the conviction.”).

2026As we observed in our seminal decisions on harmless error, State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (articulating harmless error standard in criminal cases), and Special v. West Boca Medical Center, 160 So. 3d 1251, 1256 (2014) (articulating harmless error standard in civil cases), “[t]he purpose of the harmless error analysis is to ‘conserve judicial labor by holding harmless those errors which, in the context of a case, do not vitiate the right to a fair trial and, thus, do not require a new trial.’ ” Special, 160 So. 3d at 1254 -55 (quoting DiGuilio, 491 So. 2d at 1135 ).

2025The harmless error test is applicable even to errors of a constitutional magnitude, 8 and, in the criminal context, the test is intended to “preserve[] 8 See, e.g., State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986) (noting that “constitutional errors, with rare exceptions, are subject to harmless error analysis,” and applying the harmless error rule to affirm a criminal conviction for conspiracy to traffic in cocaine, notwithstanding the prosecution’s improper questioning and elicitation of testimony regarding the defendant’s invocation of his right to remain silent during police questionin

2024The harmless error test generally applies even to errors of a constitutional magnitude, 4 and in the criminal context the test is intended to “preserve[] the accused's constitutional right to a fair trial by requiring the state to show beyond a reasonable doubt that the specific comment(s) did 4 See, e.g., State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986) (noting that “constitutional errors, with rare exceptions, are subject to harmless error analysis,” and applying the harmless error rule to affirm a criminal conviction for conspiracy to traffic in cocaine, notwithstanding the prosecution’

2025Compare Chapman v. California, 386 U.S. 18, 24 (1967) (adopting “the original common-law harmless-error rule [that] put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment”), with DiGuilio, 491 So. 2d at 1135 (“The harmless error test, as set forth in Chapman and [its] progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility

2024The harmless error test generally applies even to errors of a constitutional magnitude, 4 and in the criminal context the test is intended to “preserve[] the accused's constitutional right to a fair trial by requiring the state to show beyond a reasonable doubt that the specific comment(s) did 4 See, e.g., State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986) (noting that “constitutional errors, with rare exceptions, are subject to harmless error analysis,” and applying the harmless error rule to affirm a criminal conviction for conspiracy to traffic in cocaine, notwithstanding the prosecution’

2026“A harmless error analysis in this context looks to ‘whether the record demonstrates beyond a reasonable doubt that a rational jury’ would have found the requisite facts.” Id. (quoting Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007)).

2026“The harmless error inquiry is ‘whether the record demonstrates beyond a reasonable doubt that a rational jury would have found’ that appellant qualified as a [habitual felony offender].” Jackson, 410 So. 3d at 11 (quoting Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007)).

2025As the Florida Supreme Court has explained, “the harmless error analysis is not an 19 ‘overwhelming-evidence test.’” Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010) (quoting DiGuilio, 491 So. 2d at 1139 ).

2024The harmless error test requires the State “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010) (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)).

2025See, e.g., Pena v. State, 901 So. 2d 781, 787 (Fla. 2005) ("However, when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis." (emphasis added)); Daniel v. State, 137 So. 3d 1181, 1185 (Fla. 3d DCA 2014) ("Because the trial court instructed the jury on at least one lesser-included offense that the jury rejected, and trespass is even further removed than the lesser- included offenses for which the trial court gave instruction

2019The Florida Supreme Court, acknowledging its earlier decision in Pena v. State , 901 So.2d 781 , 787 (Fla. 2005), that "when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis," held that because the defendant's conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, fundamental error occurred in giving the flawed manslaughter by act jury instruction.

2024In the Richardson context, the harmless error inquiry focuses on "whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense." Schopp, 653 So. 2d at 1020 .

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).

2026As we observed in our seminal decisions on harmless error, State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (articulating harmless error standard in criminal cases), and Special v. West Boca Medical Center, 160 So. 3d 1251, 1256 (2014) (articulating harmless error standard in civil cases), “[t]he purpose of the harmless error analysis is to ‘conserve judicial labor by holding harmless those errors which, in the context of a case, do not vitiate the right to a fair trial and, thus, do not require a new trial.’ ” Special, 160 So. 3d at 1254 -55 (quoting DiGuilio, 491 So. 2d at 1135 ).

2026As we observed in our seminal decisions on harmless error, State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (articulating harmless error standard in criminal cases), and Special v. West Boca Medical Center, 160 So. 3d 1251, 1256 (2014) (articulating harmless error standard in civil cases), “[t]he purpose of the harmless error analysis is to ‘conserve judicial labor by holding harmless those errors which, in the context of a case, do not vitiate the right to a fair trial and, thus, do not require a new trial.’ ” Special, 160 So. 3d at 1254 -55 (quoting DiGuilio, 491 So. 2d at 1135 ).

2018I agree with the State that if this Court were to apply a proper harmless error analysis to the facts of this case, Pagan would not be entitled to relief on his claim of Hurst error.2 In Hurst, we held that error resulting from “the judge rather than the jury ma[king] all the necessary findings to impose a death sentence, is not structural error incapable of harmless error review.” Hurst, 202 So. 3d at 67 .

2018We also concluded that Hurst "error is capable of harmless error review," explaining: The harmless error test, as set forth in Chapman[ v. California , 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. 202 So.3d at 68 (quoting State v. DiGuilio , 491 So.2d 1129 , 1138 (Fla. 1986) ).

2018Rather, the test is “whether there is a reasonable possibility that the error affected the verdict.” Id.; see also Ventura v. State, 29 So. 3d 1086, 1091 (Fla. 2010) (quashing and remanding a district court's decision when the harmless error analysis focused on overwhelming evidence of guilt because it “does not address a proper [DiGuilio] analysis and does not discuss whether there is a reasonable possibility that the . . . error affected the verdict”). 8 Cooper v. State, 43 So. 3d 42, 43 (Fla. 2010); see Jackson v. State, 107 So. 3d 328, 342 (Fla. 2012) (reiterating that court “has many time

2018We have for review the decision of the Third District Court of Appeal in Rodriguez v. State , 215 So.3d 194 (Fla. 3d DCA 2017), which expressly and directly conflicts with our decision in State v. Lee , 531 So.2d 133 (Fla. 1988), on the harmless error standard of review.

2026P. 3.800(a)(1) (“A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief. . . .”); Jackson v. State, 803 So. 2d 842, 844 (Fla. 1st DCA 2001) (“To raise an illegal sentence claim under Rule 3.800(a), 1) the error must have resulted in an illegal sentence, 2) the error must appear on the face of the record, and 3) the motion must affirmatively allege that the court records demonstrate on their face an entitle

2025For this reason, 2 Appellant could not demonstrate entitlement to relief under rule 3.800(a) without citing to facts established in the trial transcript or otherwise apparent on the face of the record.” (internal citation omitted)); Plott v. State, 148 So. 3d 90, 94 (Fla. 2014) (“A claim of error under Apprendi and Blakely is subject to a harmless error analysis.”). 3

2025See, e.g., Heuss v. State, 687 So. 2d 823, 824 (Fla. 1996) (holding that an appellate court may apply the harmless error test sua sponte); State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) ("The unique function of the harmless error rule is to conserve judicial labor by holding harmless those errors which, in the context of the case, do not vitiate the right to a fair trial . . . ."); see also Jones v. State, 53 So. 3d 1146, 1147 (Fla. 2d DCA 2011) (declining to remand to the postconviction court to enter a procedurally correct order disposing of a rule 3.800(a) motion); Sweeney v. State, 9

2011But see Goodwin v. State, 751 So.2d 537, 545 (Fla.1999) (“The solemn obligation of the Court to perform an independent harmless error review and establish the analysis to be applied in performing that review is so critical to the appellate function that this Court has satisfied its obligation to review for harmless error, even when the State has not argued that the complained of error was harmless.” (citing Heuss v. State, 687 So.2d 823 (Fla.1996))).

2018Williams v. State , 967 So.2d 735 , 765 (Fla. 2007) ("When this Court strikes an aggravating factor on appeal, 'the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence.' " (quoting Jennings v. State , 782 So.2d 853 , 863 n.9 (Fla. 2001) ) ); see Wood v. State , 209 So.3d 1217 , 1229 (Fla. 2017) ("[T]he CCP aggravating factor is 'one of the most serious aggravators set out in the statutory scheme.' " (quoting Silvia v. State , 60 So.3d 959 , 974 (Fla. 2011) ) ); id. at 1233-34 ; Mahn v. State , 714 So.2d 391 , 398-99 (Fla.

2018There, we explained: "When this Court strikes an aggravating factor on appeal, 'the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence.' " Williams v. State , 967 So.2d 735 , 765 (Fla. 2007) (quoting Jennings v. State , 782 So.2d 853 , 863 n.9 (Fla. 2001) ); see also Diaz v. State , 860 So.2d 960 , 968 (Fla. 2003) ("We find this error harmless, however, after consideration of the two remaining aggravating circumstances and the five mitigating circumstances in this case.").

2012See Gomez v. U.S., 490 U.S. 858, 873 , 109 S.Ct. 2237 , 104 L.Ed.2d 923 (1989) (confirming that voir dire is “a critical stage of the criminal proceeding”); Tanzi v. State, 94 So.3d 482 (Fla.2012) (“A fundamental error is error that ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ Rodriguez v. State, 919 So.2d 1252, 1282 (Fla.2005) (quoting Brown v. State, 124 So.2d 481 (Fla.1960)).”); Reed v. State, 837 So.2d 366, 369-70 (Fla.2002) (confirming that while not all harmful error

2008Error which does not meet the exacting standard so as to be "fundamental" is subject to review in accord with State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (discussing the harmless error test). [7] Reed v. State, 837 So.2d 366, 369-70 (Fla. 2002) (footnote and citations omitted) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).

2019See State v. Abreau , 363 So.2d 1063 , 1064 (Fla. 1978) (holding that the trial court's failure to give a requested jury instruction on a necessarily included offense one step removed from the charged offense is per se reversible error but that the omission of an instruction on an offense that is two or more steps removed is subject to a harmless error analysis).

2019See State v. Abreau , 363 So.2d 1063 , 1064 (Fla. 1978) (holding that the trial court's failure to give a requested jury instruction on a necessarily included offense one step removed from the charged offense is per se reversible error but that the omission of an instruction on an offense that is two or more steps removed is subject to a harmless error analysis).

2024“When a specific request from the jury to read back testimony is at issue, a reviewing court is able to conduct a harmless error analysis.” Johnson, 53 So. 3d at 1006 n.4.

2024According to the Florida Supreme Court, a trial court commits per se error when it erroneously instructs a jury prior to deliberations that it cannot have any testimony read back, “because it is impossible to determine the effect of the erroneous instruction on the jury without engaging in speculation, and thus a reviewing court is unable to conduct a harmless error analysis.” Johnson v. State, 53 So. 3d 1003, 1005 (Fla. 2010).

2026See generally Neder v. United States, 527 U.S. 1, 8-15 (1999) (discussing harmless error versus structural error and acknowledging that “most constitutional errors can be harmless”); Wilson v. State, 764 So. 2d 813, 817-18 (Fla. 4th DCA 2000) (discussing that trial errors occur “during the presentation of the case to the jury,” and are amenable to a harmless-error analysis, while structural errors “deprive defendants of ‘basic protections’” and “infect the entire trial process” requiring automatic reversal).

2026See generally Neder v. United States, 527 U.S. 1, 8-15 (1999) (discussing harmless error versus structural error and acknowledging that “most constitutional errors can be harmless”); Wilson v. State, 764 So. 2d 813, 817-18 (Fla. 4th DCA 2000) (discussing that trial errors occur “during the presentation of the case to the jury,” and are amenable to a harmless-error analysis, while structural errors “deprive defendants of ‘basic protections’” and “infect the entire trial process” requiring automatic reversal).

2025See Britten v. State, 181 So. 3d 1215, 1218 (Fla. 1st DCA 2015) (“It is well-settled that Apprendi[1] and Blakely[2] errors are subject to a harmless error analysis . . . .” (citing Washington v. Recuenco, 548 U.S. 212 , 220–21 (2006))).

2018See Neder v. United States, 527 U.S. 1, 15 (1999) (noting that the “omission of an element [in a jury instruction] is an error that is subject to harmless-error analysis”); Plott, 148 So. 3d at 95 (“A claim of error under Apprendi and Blakely is subject to a harmless error analysis.”); Galindez v. State, 955 So. 2d 517, 524 (Fla. 2007) (“[W]e hold that harmless error analysis applies to Apprendi and Blakely error.”); see also Washington v. Recuenco, 548 U.S. 212, 220 (2006) (holding that Blakely sentencing factor error not structural and thereby subject to harmless error analysis).

2003However, even erroneous comments do not require an automatic reversal, but instead "should be evaluated according to the harmless error rule." Marshall, 476 So.2d at 153 ; see also Rodriguez v. State, 753 So.2d 29, 39 (Fla. 2000).

2000See Walker v. State, 701 So.2d 1258, 1261 (Fla. 5th DCA 1997)(en banc)(citing State v. Marshall, 476 So.2d 150 (Fla.1985))(the harmless error rule applies in cases involving comments on the right to remain silent).

2025Harmless error In Flournoy, we further observed that Erlinger, following the principle espoused in Apprendi[, 530 U.S. at 466 ], and later adopted and expanded upon by Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013), acknowledged that any fact which increases the "range of penalties" that a defendant is 4 exposed to must be decided by a jury.

2015Plott II requires the district court to perform a harmless error analysis on review of a postconviction order when the post-conviction court fails to grant relief that may be available under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004).

2007Spencer v. State, 842 So.2d 52, 76 (Fla.2003)(“[E]rro-neous comments do not require an automatic reversal, but instead should be evaluated according to the harmless error rule.”)(internal quotation omitted); State v. Murray, 443 So.2d 955, 956 (Fla.1984)(“[P]rosecutorial error alone does not warrant automatic reversal of a conviction unless the errors are so basic to a fair trial that they can never be treated as harmless.”).

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 .

2011The Fourth District Court of Appeal reversed based on this Court's opinion in Smith , although it was "`absolutely convinced that the admission *1014 of the testimony of the undisclosed witness and the failure to conduct a Richardson inquiry were harmless,' under the harmless error analysis set out in [ DiGuilio ]." Id. (quoting Schopp v. State, 641 So.2d 141, 142 (Fla. 4th DCA 1994)).

2011The Fourth District Court of Appeal reversed based on this Court’s opinion in Smith , although it was “ ‘absolutely convinced that the admis sion of the testimony of the undisclosed witness and the failure to conduct a Richardson inquiry were harmless,’ under the harmless error analysis set out in [DiGuilio ].” Id. (quoting Schopp v. State, 641 So.2d 141, 142 (Fla. 4th DCA 1994)).