Tascano v. State, No. 55394

CourtFlorida Supreme Court
Writing for the CourtADKINS; ENGLAND; ALDERMAN; ALDERMAN
Citation393 So.2d 540
PartiesRobert Wayne TASCANO, Petitioner, v. STATE of Florida, Respondent.
Decision Date05 June 1980
Docket NumberNo. 55394

Page 540

393 So.2d 540
Robert Wayne TASCANO, Petitioner,
v.
STATE of Florida, Respondent.
No. 55394.
Supreme Court of Florida.
June 5, 1980.
Rehearing Denied Feb. 27, 1981.

Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for petitioner.

Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for respondent.

ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by a certificate of the District Court of Appeal, First District, that its decision reported in 363 So.2d 405 is one which involves a question of great public interest. See art. V, § 3(b)(3), Fla. Const.

The trial court denied defendant's request that the jury be instructed on the penalty as authorized by Florida Rule of Criminal Procedure 3.390(a). The district court of appeal held that this was a matter within the discretion of the trial judge and the court did not err in refusing to instruct the jury as to the maximum and minimum penalties. The question involved is whether the provision of the rules are mandatory or directory.

Prior to its amendment in 1977, rule 3.390(a) read as follows:

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 courts interpreted this rule as being directory and not mandatory with regard to the penalty instructions. Huckeba v. State, 322 So.2d 29 (Fla. 1975); Johnson v. State, 308 So.2d 38 (Fla. 1974); Kelsey v. State, 317 So.2d 445 (Fla. 1st DCA 1975).

The rule as amended February 10 effective July 1, 1977, reads as follows:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and

Page 541

upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.

The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1261 (Fla. 1977).

We interpret this rule to mean that, upon request of either the state or the defendant, it is mandatory that an instruction be given on the maximum and minimum sentences which may be imposed. To interpret it otherwise would mean that the amendment was meaningless and accomplished nothing.

We must determine whether this decision should be retroactive or only prospective. Some trial courts and district courts of appeal have interpreted this rule as being mandatory, while others have interpreted the rule to be directory. One factor to consider in determining whether our decision should be given retroactive effect is the probable impact which such retroactive operation would have upon the administration of justice. See Annot. 14 L.Ed.2d 992, 1005 (1966).

The...

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128 practice notes
  • Jones v. State, No. 81-2176
    • United States
    • Florida District Court of Appeals
    • February 26, 1985
    ...DCA 1985); see also, e.g., Hoberman v. State, 400 So.2d 758 (Fla.1981) (applying Sarmiento holding to pending appeal); Tascano v. State, 393 So.2d 540 There is no merit in the appellant's points II and IV challenging the admissibility of evidence. The other issues concern matters unlikely t......
  • Chandler v. Crosby, No. SC04-518.
    • United States
    • United States State Supreme Court of Florida
    • December 9, 2005
    ...in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), should not be retroactively applied. Cf. Tascano v. State, 393 So.2d 540, 541 (Fla.1980) (determining in certiorari proceedings that rule change requiring jury instruction on minimum and maximum authorized sentences u......
  • Delap v. State, No. 56235
    • United States
    • Florida Supreme Court
    • September 15, 1983
    ...request to instruct the jury on the maximum and minimum sentences for lesser included offenses of first-degree murder. Tascano v. State, 393 So.2d 540 (Fla.1980), does not require that a jury be instructed on the penalty for lesser included offenses. James v. State, 393 So.2d 1138 (Fla. 3d ......
  • Walsh v. State, No. 59512
    • United States
    • United States State Supreme Court of Florida
    • July 29, 1982
    ...next contends that the trial court erred in failing to instruct on the minimum and maximum penalties as mandated by Tascano v. State, 393 So.2d 540 (Fla. 1980), and Florida Rule of Criminal Procedure 3.390(a). We reject this contention. More than in any other criminal proceeding, the jury i......
  • Request a trial to view additional results
128 cases
  • Jones v. State, No. 81-2176
    • United States
    • Florida District Court of Appeals
    • February 26, 1985
    ...DCA 1985); see also, e.g., Hoberman v. State, 400 So.2d 758 (Fla.1981) (applying Sarmiento holding to pending appeal); Tascano v. State, 393 So.2d 540 There is no merit in the appellant's points II and IV challenging the admissibility of evidence. The other issues concern matters unlikely t......
  • Chandler v. Crosby, No. SC04-518.
    • United States
    • United States State Supreme Court of Florida
    • December 9, 2005
    ...in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), should not be retroactively applied. Cf. Tascano v. State, 393 So.2d 540, 541 (Fla.1980) (determining in certiorari proceedings that rule change requiring jury instruction on minimum and maximum authorized sentences u......
  • Delap v. State, No. 56235
    • United States
    • Florida Supreme Court
    • September 15, 1983
    ...request to instruct the jury on the maximum and minimum sentences for lesser included offenses of first-degree murder. Tascano v. State, 393 So.2d 540 (Fla.1980), does not require that a jury be instructed on the penalty for lesser included offenses. James v. State, 393 So.2d 1138 (Fla. 3d ......
  • Walsh v. State, No. 59512
    • United States
    • United States State Supreme Court of Florida
    • July 29, 1982
    ...next contends that the trial court erred in failing to instruct on the minimum and maximum penalties as mandated by Tascano v. State, 393 So.2d 540 (Fla. 1980), and Florida Rule of Criminal Procedure 3.390(a). We reject this contention. More than in any other criminal proceeding, the jury i......
  • Request a trial to view additional results

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