          Supreme Court of Florida
                                   ____________

                                   No. SC17-805
                                   ____________

                          FRANCISCO RODRIGUEZ,
                                 Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                   [July 12, 2018]

PARIENTE, J.

      We have for review the decision of the Third District Court of Appeal in

Rodriguez v. State, 215 So. 3d 194 (Fla. 3d DCA 2017), which expressly and

directly conflicts with our decision in State v. Lee, 531 So. 2d 133 (Fla. 1988), on

the harmless error standard of review. We have jurisdiction. See art. V, § 3(b)(3),

Fla. Const.

      In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), this Court set out the test

to be applied in determining whether an error is harmless:

      The test is not a sufficiency-of-the-evidence, a correct result, a not
      clearly wrong, a substantial evidence, a more probable than not, a
      clear and convincing, or even an overwhelming evidence test.
      Harmless error is not a device for the appellate court to substitute
      itself for the trier-of-fact by simply weighing the evidence. The focus
      is on the effect of the error on the trier-of-fact. The question is
      whether there is a reasonable possibility that the error affected the
      verdict. The burden to show the error was harmless must remain on
      the state. If the appellate court cannot say beyond a reasonable doubt
      that the error did not affect the verdict, then the error is by definition
      harmful.

Id. at 1139.

      In the conflict case, State v. Lee, this Court addressed the following question

of great public importance:

      DOES THE ERRONEOUS ADMISSION OF EVIDENCE OF
      COLLATERAL CRIMES REQUIRE REVERSAL OF
      APPELLANT’S CONVICTION WHERE THE ERROR HAS NOT
      RESULTED IN A MISCARRIAGE OF JUSTICE BUT THE STATE
      HAS FAILED TO DEMONSTRATE BEYOND A REASONABLE
      DOUBT THAT THERE IS NO REASONABLE POSSIBILITY
      THAT THE ERROR AFFECTED THE JURY VERDICT?

531 So. 2d at 134. Answering the question in the affirmative, this Court declined

to modify the DiGuilio test in favor of the “miscarriage of justice” test codified by

the Legislature in section 59.041, Florida Statutes (2017). Lee, 531 So. 2d at 136.

      We have since reaffirmed this harmless error standard numerous times. See,

e.g., Ventura v. State, 29 So. 3d 1086, 1088 (Fla. 2010) (holding that the Third

District “improperly utilized an ‘overwhelming evidence’ test” when considering

whether the error was harmless); Williams v. State, 863 So. 2d 1189, 1190 (Fla.

2003) (quashing in part the Third District’s decision because it determined that the

error “did not deprive[] [defendant] of a fair trial” rather than considering whether


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the error was harmless under the standard set forth in DiGuilio); Knowles v. State,

848 So. 2d 1055, 1058-59 (Fla. 2003) (“[T]he DiGuilio standard remains the

benchmark of harmless error analysis.”); Goodwin v. State, 751 So. 2d 537, 546

(Fla. 1999) (“[T]he DiGuilio standard of harmless error remains the applicable

analysis to be employed in determining whether the error requires a reversal on

direct appeal.”).

      In this case the Third District departed from the DiGuilio standard,

concluding:

             Any error by the trial court in admitting the hearsay statements
      at issue was, at best, harmless. See § 59.041, Fla. Stat. (2015) (“No
      judgment shall be set aside or reversed . . . on the ground of . . . the
      improper admission or rejection of evidence . . . unless in the opinion
      of the court to which application is made, after an examination of the
      entire case it shall appear that the error complained of has resulted in a
      miscarriage of justice.”)

Rodriguez, 215 So. 3d at 195. Consistent with our precedent, we quash the Third

District’s decision in this case and remand for reconsideration under the correct

harmless error standard. We decline to address the additional issue raised by

Rodriguez that is beyond the scope of the conflict issue. See Williams, 863 So. 2d

at 1190.

      It is so ordered.

LEWIS, QUINCE, and LABARGA, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY, C.J., and
LAWSON, J., concur.


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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

POLSTON, J., dissenting.

      The Third District’s decision in its entirety states the following:

             Any error by the trial court in admitting the hearsay statements
      at issue was, at best, harmless. See § 59.041, Fla. Stat. (2015) (“No
      judgment shall be set aside or reversed . . . on the ground of . . . the
      improper admission or rejection of evidence . . . unless in the opinion
      of the court to which application is made, after an examination of the
      entire case it shall appear that the error complained of has resulted in a
      miscarriage of justice.”).
             Affirmed.

Rodriguez v. State, 215 So. 3d 194, 195 (Fla. 3d DCA 2017).

      Because there are insufficient facts and analysis in the Third District’s

decision, I would decline to exercise jurisdiction in this case. Therefore, I

respectfully dissent.

CANADY, C.J., and LAWSON, J., concur.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Third District - Case No. 3D15-2339

      (Miami-Dade County)

Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public
Defender, Eleventh Judicial Circuit, Miami, Florida,

      for Petitioner




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Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Michael Mervine,
Acting Bureau Chief, and Nikole Hiciano, Assistant Attorney General, Miami,
Florida,

      for Respondent




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