Caruthers v. State, No. 4D16–1567

CourtCourt of Appeal of Florida (US)
Writing for the CourtLevine, J.
Citation232 So.3d 441 (Mem)
Decision Date13 December 2017
Docket NumberNo. 4D16–1567
Parties Roger E. CARUTHERS, Appellant, v. STATE of Florida, Appellee.

232 So.3d 441 (Mem)

Roger E. CARUTHERS, Appellant,
v.
STATE of Florida, Appellee.

No. 4D16–1567

District Court of Appeal of Florida, Fourth District.

[December 13, 2017]


Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

Levine, J.

In a motion for rehearing, the state for the first time cites Dean v. State , 42 Fla. L. Weekly S769, ––– So.3d ––––, 2017 WL 3774647 (Fla. Aug. 31, 2017), an opinion which issued before oral argument in this case. In a concurring opinion in Dean , three justices stated that "where the evidence supports the charged offense as well as the requested instruction on a necessarily lesser included offense, any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon." See id. (Polston, J., concurring). Because Dean did not involve a majority, we are compelled to follow Daugherty v. State , 211 So.3d 29 (Fla. 2017). See Santos v. State , 629 So.2d 838, 840 (Fla. 1994) ("Under the Florida Constitution, both a binding decision and a binding precedential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision.") (citing art. V, § 3(a), Fla. Const.) (footnotes omitted). Accordingly, the motion for rehearing is denied.

Gerber, C.J., and May, J., concur.

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4 practice notes
  • Knight v. State, No. SC18-309
    • United States
    • United States State Supreme Court of Florida
    • December 19, 2019
    ...that this Court's decision in Dean abrogated the jury pardon doctrine and that the Fourth District's decision in Caruthers v. State , 232 So. 3d 441 (Fla. 4th DCA 2017), correctly concluded that this Court's decision in Dean did not abrogate the jury pardon doctrine. This issue presents a p......
  • Knight v. State, No. 1D14–2382
    • United States
    • Court of Appeal of Florida (US)
    • February 19, 2018
    ...following opinion affirming Appellant's conviction and sentence on two alternative grounds. We certify conflict with Caruthers v. State , 232 So.3d 441 (Fla. 4th DCA 2017). We also re-certify as a question of great public importance a question we certified in Moore v. State , 114 So.3d 486,......
  • Hargrett v. State, No. 4D16-2846
    • United States
    • Court of Appeal of Florida (US)
    • September 5, 2018
    ...is considering the viability of the jury pardon doctrine, this Court has declined to hold that it was abrogated. See Caruthers v. State, 232 So.3d 441 (Fla. 4th DCA 2017), review denied SC 18-51, 2018 WL 987286 (Fla. Feb. 20, 2018) ; see, e.g. , Roberts v. State , 242 So.3d 296, 300 (Fla. 2......
  • Franklin v. State, Case No. 2D17-2958
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2019
    ...three votes, leading the Fourth District to the conclusion that it was not a "binding precedential opinion." See Caruthers v. State, 232 So.3d 441, 441 (Fla. 4th DCA 2017) (quoting Santos v. State, 629 So.2d 838, 840 (Fla. 1994) ). However, the abrogation of the pardon power—and the conclus......
4 cases
  • Knight v. State, No. SC18-309
    • United States
    • United States State Supreme Court of Florida
    • December 19, 2019
    ...that this Court's decision in Dean abrogated the jury pardon doctrine and that the Fourth District's decision in Caruthers v. State , 232 So. 3d 441 (Fla. 4th DCA 2017), correctly concluded that this Court's decision in Dean did not abrogate the jury pardon doctrine. This issue presents a p......
  • Knight v. State, No. 1D14–2382
    • United States
    • Court of Appeal of Florida (US)
    • February 19, 2018
    ...following opinion affirming Appellant's conviction and sentence on two alternative grounds. We certify conflict with Caruthers v. State , 232 So.3d 441 (Fla. 4th DCA 2017). We also re-certify as a question of great public importance a question we certified in Moore v. State , 114 So.3d 486,......
  • Hargrett v. State, No. 4D16-2846
    • United States
    • Court of Appeal of Florida (US)
    • September 5, 2018
    ...is considering the viability of the jury pardon doctrine, this Court has declined to hold that it was abrogated. See Caruthers v. State, 232 So.3d 441 (Fla. 4th DCA 2017), review denied SC 18-51, 2018 WL 987286 (Fla. Feb. 20, 2018) ; see, e.g. , Roberts v. State , 242 So.3d 296, 300 (Fla. 2......
  • Franklin v. State, Case No. 2D17-2958
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2019
    ...three votes, leading the Fourth District to the conclusion that it was not a "binding precedential opinion." See Caruthers v. State, 232 So.3d 441, 441 (Fla. 4th DCA 2017) (quoting Santos v. State, 629 So.2d 838, 840 (Fla. 1994) ). However, the abrogation of the pardon power—and the conclus......

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