per se reversible error in Florida

2011However, the Florida Supreme Court has “established a per se reversible error rule where a trial court responds to a jury’s question without giving counsel notice and ‘the opportunity to participate in the discussion of the action to be taken on the jury’s request.’ ” Mills v. State, 620 So.2d 1006, 1007 (Fla.1993) (quoting Ivory v. State, 351 So.2d 26, 28 (Fla.1977)).

2011In adopting a per se reversible error rule, the court recognized that “communication with the jury is ‘so fraught with potential prejudice that it cannot be considered harmless.’ ” Id. (quoting Ivory, 351 So.2d at 28 ).

2026This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury's request should or should not be honored.”) and Thomas v. State, 730 So. 2d 667 (Fla. 1998) (“The per se reversible error rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection at trial.”). 2

2015However, as we stated in Thomas v. State, 730 So. 2d 667, 668 (Fla. 1998), “The per se reversible error rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection at trial.

2022As explained in the cases above, the Court has consistently applied a per se reversible standard consistent with the first category of the test set forth in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

2019Here, the issue of liability was vigorously disputed.4 Rierson was rendered comatose and unable to communicate immediately following the accident, thus 3 See State v. DiGuilio, 491 So. 2d 1129, 1135 (1986), for a discussion comparing the per se reversible rule and the harmless error rule. 4 We reject the argument that Rierson opened the door to Deveau’s improper closing argument statements.

1998As we stated in State v. Franklin, 618 So.2d 171, 173 (Fla.1993): The per se reversible error rule ... exists for two distinct reasons.

1998P. 3.410 (emphasis added). [2] See also State v. Franklin, 618 So.2d 171 (Fla. 1993); Colbert v. State, 569 So.2d 433 (Fla.1990); Williams v. State, 488 So.2d 62 (Fla.1986); Curtis v. State, 480 So.2d 1277 (Fla.1985). [3] Colbert, 569 So.2d at 435 ("This per se reversible error rule evolved as a prophylactic procedure to ensure that a trial judge's response to a jury request for additional instructions or to have testimony read is made in the presence of counsel."); cf. Pope v. State, 569 So.2d 1241, 1244 (Fla.1990)("[T]his per se [reversible error] rule is merely prophylactic in nature and mu

2011However, the Florida Supreme Court has “established a per se reversible error rule where a trial court responds to a jury’s question without giving counsel notice and ‘the opportunity to participate in the discussion of the action to be taken on the jury’s request.’ ” Mills v. State, 620 So.2d 1006, 1007 (Fla.1993) (quoting Ivory v. State, 351 So.2d 26, 28 (Fla.1977)).

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).

2018Id. (quoting Galindez v. State, 955 So.2d 517, 522 (Fla. 2007) (quoting Neder v. United States, 527 U.S. 1, 18 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999))); cf. Jenkins v. Hutton, — U.S. -, 137 S.Ct. 1769, 1772 ,' 198 L.Ed.2d 415 (2017) (recognizing that :the proper, focus in an instructional error case is on whether , a properly instructed, reasonable jury cpuld have recommended death).- In practice, however, the majority has replaced the proper harmless error analysis with the same per se reversible error rule that Hurst rejected, finding Hurst error' harmful in every case in which the jury di

2017State v. Estevez, 753 So.2d 1, 4-5 (Fla. 1999), superseded by Washington v. Recuenco, 548 U.S. 212 , 126 S.Ct. 2546 , 165 L.Ed.2d 466 (2006); see Galindez v. State, 955 So.2d 517 (Fla. 2007).

1994“A trial court’s failure to hold a complete inquiry is a per se reversible error.” Walker v. State, 573 So.2d 1075, 1075 (Fla. 4th DCA 1991) (emphasis added).

1991Accord Walker v. State, 573 So.2d 1075 (Fla. 4th DCA 1991) (“A trial court’s failure to hold a complete inquiry is a per se reversible error to which there is no harmless error exception.”).

2022Finally, when a bailiff engages in unsupervised conversations with a jury, harmless error analysis is inappropriate because it “would ‘unnecessarily embroil trial counsel, trial judges and appellate courts in a search for evanescent “harm,” real or fancied.’ ” Merricks, 831 So. 2d at 161 (quoting Ivory v. State, 351 So. 2d 26, 28 (Fla. 1977) (England, J., concurring)).

2011See State v. Merricks, 831 So.2d 156, 161 (Fla.2002) ("To apply a harmless error analysis to such improper communications as the State proposes would `unnecessarily embroil trial counsel, trial judges and appellate courts in a search for evanescent harm, real or fancied.'") (quoting Ivory, 351 So.2d at 28 (England, J., concurring)).

2022Bradley v. State, 513 So. 2d 112, 113-14 (Fla. 1987) (citing Curtis v. State, 480 So. 2d 1277, 1279 (Fla. 1985)); see also Colbert v. State, 569 So. 2d 433, 435 (Fla. 1990) (listing cases and examining the history of the per se reversible error rule in the rule 3.410 context).

2011These circumstances include when a trial *1008 judge "respond[s] to a request from the jury without the prosecuting attorney, the defendant, and defendant's counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury's request." Ivory v. State, 351 So.2d 26, 28 (Fla.1977); see also Bradley v. State, 513 So.2d 112, 113-14 (Fla.1987) ("[B]oth the state and the defendant must have the opportunity to participate, regardless of the subject matter of the jury's inquiry.

2022Bradley v. State, 513 So. 2d 112, 113-14 (Fla. 1987) (citing Curtis v. State, 480 So. 2d 1277, 1279 (Fla. 1985)); see also Colbert v. State, 569 So. 2d 433, 435 (Fla. 1990) (listing cases and examining the history of the per se reversible error rule in the rule 3.410 context).

1998P. 3.410 (emphasis added). [2] See also State v. Franklin, 618 So.2d 171 (Fla. 1993); Colbert v. State, 569 So.2d 433 (Fla.1990); Williams v. State, 488 So.2d 62 (Fla.1986); Curtis v. State, 480 So.2d 1277 (Fla.1985). [3] Colbert, 569 So.2d at 435 ("This per se reversible error rule evolved as a prophylactic procedure to ensure that a trial judge's response to a jury request for additional instructions or to have testimony read is made in the presence of counsel."); cf. Pope v. State, 569 So.2d 1241, 1244 (Fla.1990)("[T]his per se [reversible error] rule is merely prophylactic in nature and mu

2011In State v. Schopp, 653 So.2d 1016 (Fla.1995), this Court receded from a similar per se reversible error ruling based upon presumed harm from the possibility of uncertainty.

2011In State v. Schopp, 653 So.2d 1016 (Fla.1995), this Court receded from a similar per se reversible error ruling based upon presumed harm from the possibility of uncertainty.

2003See Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

2003See Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

2022Bradley v. State, 513 So. 2d 112, 113-14 (Fla. 1987) (citing Curtis v. State, 480 So. 2d 1277, 1279 (Fla. 1985)); see also Colbert v. State, 569 So. 2d 433, 435 (Fla. 1990) (listing cases and examining the history of the per se reversible error rule in the rule 3.410 context).

1998P. 3.410 (emphasis added). [2] See also State v. Franklin, 618 So.2d 171 (Fla. 1993); Colbert v. State, 569 So.2d 433 (Fla.1990); Williams v. State, 488 So.2d 62 (Fla.1986); Curtis v. State, 480 So.2d 1277 (Fla.1985). [3] Colbert, 569 So.2d at 435 ("This per se reversible error rule evolved as a prophylactic procedure to ensure that a trial judge's response to a jury request for additional instructions or to have testimony read is made in the presence of counsel."); cf. Pope v. State, 569 So.2d 1241, 1244 (Fla.1990)("[T]his per se [reversible error] rule is merely prophylactic in nature and mu

2017See Lindsay v. State, 1 So.3d 270 (Fla. 1st DCA 2009); Riley v. State, 25 So.3d 1 (Fla. 1st DCA 2008).

2016In Riley v. State, 25 So.3d 1 (Fla. 1st DCA 2008), rev. dismissed, 26 So.3d 1288 (Fla.2009), the court reversed for a new trial when it granted a petition for IAAC on the grounds that appellate counsel had failed to argue a per se reversible error of failing to instruct on a lesser-included offense.

2019See, e.g., Soto, 181 So. 3d at 1226 (“Arguing that a 7 Trooper Sanchez was the sole witness at the scene upon whom she could rely to advance her theory of the case.

2019Ctr., 160 So. 3d 1251, 1256 (Fla. 2014) (emphasis supplied). 3 See State v. DiGuilio, 491 So. 2d 1129, 1135 (1986), for a discussion comparing the per se reversible rule and the harmless error rule. 7 Here, the issue of liability was vigorously disputed.4 Rierson was rendered comatose and unable to communicate immediately following the accident, thus Trooper Sanchez was the sole witness at the scene upon whom she could rely to advance her theory of the case.

2018See, e.g., Kopsho v. State, 209 So. 3d 568, 570 (Fla. 2017) (holding Hurst error was not harmless after explaining that all that can be determined from the jury’s 10-2 death recommendation is “that the jury did not unanimously recommend a sentence of death”).

2018See, e.g., Kopsho v. State, 209 So.3d 568, 570 (Fla. 2017) (holding Hurst error was not harmless after explaining that all that can be determined from the jury’s 10-2 death recommendation is “that the-jury did not unanimously recommend a sentence of death”).

2017See Lindsay v. State, 1 So.3d 270 (Fla. 1st DCA 2009); Riley v. State, 25 So.3d 1 (Fla. 1st DCA 2008).

2017State v. Estevez, 753 So.2d 1, 4-5 (Fla. 1999), superseded by Washington v. Recuenco, 548 U.S. 212 , 126 S.Ct. 2546 , 165 L.Ed.2d 466 (2006); see Galindez v. State, 955 So.2d 517 (Fla. 2007).