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GRAY v. STATE

No. 80-353.

400 So.2d 468 (1981)

Archie B. GRAY, Jr., Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fifth District.

March 18, 1981.

Attorney(s) appearing for the Case

James B. Gibson, Public Defender, James R. Wulchak, Asst. Public Defender, and Burke D. Chester, Sp. Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

REVERSED and REMANDED but, as in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), we certify the following question to the Florida Supreme Court:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 and SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a), FLORIDA RULES OF CRIMINAL PROCEDURE...

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