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Cardenas v. State2/26/2004
CONCLUSION
In conclusion, we hold that an improper instruction on the statutory presumption of impairment, given contrary to the holding in Miles, is not fundamental error if the State charges DUBAL and the jury is correctly instructed thereon, or if the jury is correctly instructed on actual impairment. As to improper instructions that are preserved by a timely objection, we hold that error under Miles is harmless under a general verdict when the State charges and the jury is also correctly instructed on DUBAL. However, if no DUBAL instruction is given and the jury must rely on impairment as the sole theory of guilt of DUI, then any preserved error in giving an improper instruction on the statutory presumption of impairment should be assessed under the harmless error test of DiGuilio. Based on these conclusions, we approve the First District decision in Cardenas and answer the question certified therein in the negative. In Bonine, we quash the Fifth District decision and remand for affirmance of Bonine's conviction of DUI manslaughter. We disapprove McBride to the extent it is inconsistent with this opinion. [FN14]
FN14. We decline to address the additional issues raised by the parties that are beyond the scope of the certified question. See Wheaton v. State, 789 So.2d 975, 975 n. 2 (Fla.2001); McMullen v. State, 714 So.2d 368, 373 (Fla.1998).
It is so ordered.
ANSTEAD, C.J., and LEWIS, CANTERO, and BELL, JJ., concur.
WELLS, J., concurs in part and dissents in part with an opinion, in which QUINCE, J., concurs.
WELLS, J., concurring in part and dissenting in part.
I concur with the majority's decision in approving the First District's decision in Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002), and in quashing the Fifth District's decision in Bonine v. State, 811 So.2d 863 (Fla. 5th DCA 2002). I do not join in the majority opinion in respect to harmless error, which I conclude is dicta. I dissent from the majority's partial disapproval of the Second District's decision in McBride v. State, 816 So.2d 656 (Fla. 2d DCA 2002).
The reason that the majority's discussion of the harmless error is dicta in Bonine is plain in that the majority opinion acknowledges, at page 24, that there was no objection to the instruction. In light of there being no objection, as this Court pointed out in Reed v. State, 837 So.2d 366, 369- 70 (Fla.2002), the proper analysis is whether the error is fundamental--not whether the error is harmless. Bonine conflicts with Cardenas but not with McBride.
Thus, this Court does not have jurisdiction to disapprove a part of McBride. But even if there was jurisdiction, I would not agree with the partial disapproval of the McBride decision because the majority gives the Second District's opinion too *398 cramped a reading and unnecessarily and inappropriately corrects the Second District. The majority ignores that the Second District's opinion specially states:
Error is harmless only "if it can be said beyond a reasonable doubt that the verdict could not have been affected by error." State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).
McBride v. State, 816 So.2d at 657. I do not join in disapproving the district court for its use of a word which the majority simply decides it will not use.
I do agree with the Second District's decision that any error in respect to the instruction was harmless.
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