Johnson v. State, 45849

Decision Date11 December 1974
Docket NumberNo. 45849,45849
Citation308 So.2d 38
PartiesAaron JOHNSON, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

James A. Gardner, Public Defender, and Robert T. Benton, II, Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for respondent.

FERRIS, Circuit Judge.

This cause is here on petition for writ of certiorari, supported by certificate of the District Court of Appeal, Second District, that its decision (Johnson v. State, 297 So.2d 35) is one which involves a question of great public interest. Pursuant to Fla.Const., Article V, Sec. 3(b)(3), F.S.A., we have jurisdiction.

The petitioner in this case was tried by jury, convicted, and sentenced to life imprisonment on an information charging him with second degree murder. Before the case was submitted to the jury, defense counsel requested in writing that the trial judge instruct the jury as to the maximum penalty for the offense in accordance with Rule 3.390(a), Fla.Rules of Criminal Procedure. This requested instruction was denied. After conviction, petitioner appealed to the District Court of Appeal, Second District, which affirmed the trial Court, relying mainly on Simmons v. State, 1948, 160 Fla. 626, 36 So.2d 207, but it certified to this Court the question of whether the language in the above designated rule is mandatory or directory. If the requirements of the rule are mandatory, it must be complied with by the trial judge; if, however, such language is directory only, the granting or denying of a request for such instruction would rest within the sound discretion of the trial judge.

Rule 3.390(a) provides:

'The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.'

the language of which was lifted almost verbatim from the provisions of Sec. 918.10(1), F.S.A.

This Court, in construing the statutory requirement of charging the jury on the penalty fixed for the offense, said in Simmons v. State, 36 So.2d 207, 209 (1948)

'The provision of the statute in question must be interpreted as being merely directory, and not mandatory. It follows that the trial judge was privileged to ignore the statute in so far as it attempts to require the inclusion in the charge of the penalty for the offense for which the defendant was on trial.'

This interpretation was buttressed by the later decisions in Holmes v. State, Fla.App.3d, 181 So.2d 586 (1965), McBride v. State, Fla.App.1st, 197 So.2d 850 (1967).

While it is true that Simmons, as contended by petitioner, also concerned itself with the propriety of the legislature's attempt to infringe on a trial court's inherent power to perform its judicial function, (thus causing the infirmity which petitioner says is cured by the adoption of a rule of procedure by this Court...

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31 cases
  • Tascano v. State, KK-22
    • United States
    • Florida District Court of Appeals
    • October 18, 1978
    ...for which the accused is then on trial. (Emphasis supplied) In Johnson v. State, 297 So.2d 35 (Fla.2d DCA 1974), cert. discharged 308 So.2d 38 (Fla.1975), the defendant had asserted that the court erred in denying his requested jury instructions on the penalty for the crime with which he wa......
  • Williams v. State
    • United States
    • Florida District Court of Appeals
    • May 19, 1981
    ...as vesting discretion in the trial court, see State v. Terry, 336 So.2d 65 (Fla.1976), and cases collected in n. 1; Johnson v. State, 308 So.2d 38 (Fla.1975); Golson v. State, 353 So.2d 195 (Fla. 3d DCA 1977). Williams' clear right to the penalty instruction did not arise until after his tr......
  • State v. Terry
    • United States
    • Florida Supreme Court
    • February 25, 1976
    ...the jury be so instructed. Subsequent to filing of the instant proceeding, but prior to oral argument, this Court decided Johnson v. State, 308 So.2d 38 (Fla.1975). Johnson held that Rule 3.390(a), Supra, was discretionary, not mandatory, and that the trial judge was not obliged to include ......
  • Cuba v. State
    • United States
    • Florida District Court of Appeals
    • July 11, 1978
    ...that they are insolvent". The refusal of the court to give the requested instruction as to penalties was not error. In Johnson v. State, 308 So.2d 38 (Fla.1975) the Supreme Court held that the provision for such instruction as set out in Florida Rules of Criminal Procedure 3.390(a) was dire......
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