Warfield Raymond WIKE, Jr., Appellant, v. STATE of Florida, Appellee, 648 So. 2d 683

PER CURIAM. Warfield Raymond Wike, Jr., appeals his sentence of death for first-degree murder imposed after a remand for a new sentencing proceeding. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We hold that the trial judge erroneously denied Wike his vested procedural right to conclude the closing arguments before the jury, and, consequently, we must reverse his sentence and remand this cause for resentencing. Wike was convicted of first-degree murder, kidnapping, sexual battery, and attempted murder and was sentenced to death for the first-degree murder conviction.

On appeal, we affirmed the convictions but ordered a new sentencing proceeding. On remand, the jury unanimously recommended the death penalty, which the trial judge subsequently imposed. It is this death sentence that is now before the Court. In this appeal, Wike raises eleven issues, the first of which we find to be dispositive. In his first issue, Wike asserts that the trial judge erroneously denied him the right to final closing argument. The facts pertinent to this claim are as follows.

After remand by this Court, but before the new sentencing proceeding, Wike filed a motion requesting that he be allowed to give final closing argument, i.e., that his closing argument follow the State’s closing argument. In making this request, Wike’s counsel relied on Florida Rule of Criminal Procedure 3.250, which governs the presentation of arguments during the guilt phase. At the hearing on Wike’s motion, the trial judge asked: “Do the rules specifically address opening and closing with regard to a 'penalty phase?” (Emphasis added). The State responded, “It does not address that as I recall, Judge.

That is 3.250,1 believe.” Additionally, the State informed the judge that Wike’s request did “not corn-port 'with the Rules of Criminal Procedure.” The trial court denied Wike’s motion. Wike renewed his request for final closing argument near the close of the resentencing proceeding. At that time, the following colloquy took place: TRIAL JUDGE: [A]gain, it does not seem to be clear law right on point. It appears to be a procedural matter. WIKE’S COUNSEL: OK, then for the record I’ll request that we be allowed rebuttal after the State. TRIAL JUDGE: I don’t know of any— The norm in the sentencing phase is argument.

I’m not familiar with rebuttal_ What is the State’s position? STATE: [Rebuttal] is not justified under the cases that presently exist. TRIAL JUDGE: I’m a little surprised there is not more guidance on this area, but there is not and it appears as though the [prior] ruling of [this] Court has logic to it.

After the jury returned its recommendation and the penalty phase proceeding had concluded, Wike’s counsel, in a motion for a mistrial, brought to the attention of the trial judge and the state attorney Florida Rule of Criminal Procedure 3.780(c), which governs the presentation of arguments in penalty phase proceedings. The trial judge denied the motion for mistrial, stating: Neither the State nor defense counsel cited [rule 3.780(c)] to the Court at the time the Pretrial Motion was argued or at the Charge Conference when the issue was again raised.

This Court finds that the term “will” [within rule 3.780] is not mandatory and allows the Court discretion with regard to the order of argument. However, even if the Court has no discretion in this ease and allowing the State closing argument was error, the issue remains is it harmless error or is it fundamental error which would require a mistrial. In that this is a capital case, the rule differs from Rule 3.250, Florida Rules of Criminal Procedure which provides a Defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury. (Emphasis added).

The Defendant in the instant case did in fact offer testimony in his own behalf (other than his own) and would not have been entitled to closing argument before the jury under Rule 3.250. Additionally, the defense did not bring to the Court’s attention anything argued by the State during its argument that the defense believed was necessary to rebut nor did the defense request additional or rebuttal argument subsequent to the State’s closing argument.

In order to assign denial of the right to a closing argument available as error, the Defendant must have tendered and been refused the right to have his counsel make a closing argument subsequent to a closing argument against him made for the prosecution. (Emphasis added). Hall v. State, [119 Fla. 38,] 160 So. 511, 512 (Fla.1935). In a non-capital trial, the right to open and close the argument to the jury is a substantial procedural right, but never has been raised to constitutional status. Preston v. State, 260 So.2d 501, 505 (Fla.1972).

The Supreme Court of Florida has held that the right to open and close belongs to the prosecution as the party with the burden of proof. Id. at 505. This Court has not found any case authority holding that the right to close the argument to the jury in the penalty phase of a capital case rises to the level of a substantial procedural right where the jury returns an advisory verdict even though same must be given great weight by the sentencing Court. In the instant case, both sides had equal opportunity for argument, and altering the order of argument from Florida Rule of Criminal Procedure 3.780(

e) does not appear to be fundamental error. Quince v. State, [414 So.2d 185 (Fla.), cert. denied, 459 U.S. 895, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982) ]. In

summary, throughout the proceedings, Wike’s counsel asserted that Wike had a right to the concluding argument but did not cite rule 3.780; the State erroneously advised the trial judge that no rule of criminal procedure governed this situation; and the trial judge, after finally being advised of the correct rule, found that the rule was discretionary rather than mandatory.

Rule 3.250, which governs a defendant’s right to conclude final arguments in the guilt phase of a criminal trial, provides that “a defendant offering no testimony in his or her own behalf,, except the defendant’s own, shall be entitled to the concluding argument before the jury.” Rule 3.780, which governs a defendant’s right to conclude final arguments in the penalty phase of a capital case, provides as follows: “Both the state and the defendant will be given an equal opportunity for argument, each being allowed one argument.

The state mii present argument first.” (Emphasis added.) Both rules are clear and unambiguous — in a guilt phase proceeding, a defendant has the right to close in final argument only if the defendant presents no testimony other than his or her own; in a penalty phase proceeding of a death case, a defendant always has the right to close in final argument. To fully understand the rights this state has historically provided to defendants regarding concluding arguments under either rule, it is necessary to examine the history of these rules.

At common law, the generally accepted rule was that the party who had the burden of proof had the right to begin and conclude the argument to the jury. Huston v. Green, 91 Fla. 434, 108 So. 846 (1926). The rule applied to both civil and criminal cases. Faulk v. State, 104 So.2d 519 (Fla.1958); Smith v. State, 155 Fla. 148, 19 So.2d 698 (1944). The rationale behind this common law rule was to provide the party who shouldered the disadvantage of the burden of proof with the advantage of the opening and closing arguments before the jury. Faulk. In 1853, this common law rule was changed in Florida through

chapter 539, Laws of Florida (1853), to provide that a defendant who produced no testimony at trial was entitled to the advantage of making the concluding argument before the jury. That law was later codified as

section 918.09, Florida Statutes. As early as 1858, this Court determined that a trial judge had no discretion in following the statutory predecessor of

section 918.09 and that the erroneous denial of a defendant’s right to concluding argument constituted reversible error. Heffron v. State, 8 Fla. 73 (1858). Throughout the years, Florida courts have never deviated from the holding that the denial of a defendant’s right to close under this rule constitutes reversible error. Faulk; Morales v. State, 609 So.2d 765 (Fla. 3d DCA 1992); Graddy v. State, 606 So.2d 1242 (Fla. 2d DCA 1992); Lamar v. State, 583 So.2d 771 (Fla. 4th DCA 1991); Crowley v. State, 558 So.2d 529 (Fla. 4th DCA 1990); Terwilliger v. State, 535 So.2d 346 (Fla. 1st DCA 1988); Gari v.

State, 364 So.2d 766 (Fla. 2d DCA 1978); Dampier v. State, 336 So.2d 683 (Fla. 2d DCA 1976); Cagnina v. State, 175 So.2d 577 (Fla. 3d DCA 1965). In fact, this is true even though in 1968

section 918.09 was incorporated as rule 3.250 and in 1970

section 918.09 was repealed. See, e.g., Wilson v. State, 284 So.2d 24 (Fla. 2d DCA 1973) (even though the opening and closing of final argument statute is now a procedural rule, the denial of that 120-year-old right still constitutes reversible error), quashed on other grounds, 294 So.2d 327 (Fla.1974). Further, Justice Thornal made clear in Birge v. State, 92 So.2d 819 (Fla.1957), that erroneous denial of a defendant’s right to conclude the arguments is reversible error even when more than sufficient evidence exists to determine that a defendant is guilty.

The Court explained in Birge that it is not this Court’s privilege to disregard the right to concluding argument “even though we as individuals might feel that [a defendant] is as guilty as sin itself.” 92 So.2d at 822. See also Terwil-liger, 535 So.2d at 348 (the erroneous denial of a defendant’s right to concluding argument constitutes reversible error, “notwithstanding that the state’s evidence may be more than adequate to support a verdict of guilty”). As such, the law is clear that the erroneous denial of the right provided by rule 3.250 cannot be deemed harmless error. Morales; Hart v.

State, 526 So.2d 124 (Fla. 5th DCA 1988); Gari. As the Fourth District Court of Appeal stated in Raysor v. State, 272 So.2d 867, 869 (Fla. 4th DCA 1973): [W]e are at a loss as a practical matter to know just how any criminal defendant could in fact make a demonstration of error because of the refusal of the trial court to follow the dictates of the Rule. It is inherent in the procedure, as all acquainted with trial tactics know, that the right to address the jury finally is a fundamental advantage which simply speaks for itself.

Although rule 3.250 has been in existence in some form or another for over 135 years, rule 3.780 was not enacted until 1977. Even so, rule 3.780 is not new and should be familiar to all attorneys and judges involved in death penalty proceedings. That rule was adopted as part of the bifurcated procedure established for the presentation of evidence and rebuttal testimony in the guilt and sentencing proceedings for capital eases. See rule 3.780(a), (b). Rule 3.780(

c) makes it clear that a defendant always presents the final closing argument in the sentencing phase. In a capital sentencing hearing, a defendant is on trial for a determination of a life or death sentence and, in promulgating rule 3.780(c), this Court made a conscious policy decision that, under these circumstances, a defendant should have the procedural right of having the concluding argument before the jury. A trial judge has no discretion to change the order of the arguments under this rule, and there is no question but that the word “will” in rule 3.780(

c) was intended to be mandatory. Nevertheless, the State argues that, when ruling under rule 3.780(c), we need not follow the reversible error doctrine that has been established under rule 3.250. The State contends that rule 3.250 governs the guilt phase of a trial, not the penalty phase, as does rule 3.780(c), and that, because the two phases differ in many respects, so too should they differ in the application of the reversible error doctrine. Instead, the State contends that we should apply a harmless error analysis in determining whether the trial judge’s error is reversible. We disagree.

As we noted in Fitzpatrick v. State, 527 So.2d 809, 811 (Fla.1988), “A high degree of certainty in procedural fairness ... must be maintained in order to insure that the death penalty is administered evenhandedly.” If a defendant is not capable of demonstrating prejudice under rule 3.250, how could a defendant ever be expected to demonstrate prejudice under 3.780(c)? We find that no real difference exists in the policy of affording a defendant the right to concluding argument under either rule, and, consequently, we conclude that the failure to provide a defendant with the concluding argument under rule 3.780(

c) constitutes reversible error. The State also argues that, even if the judge’s failure to provide Wike with concluding argument under rule 3.780(

c) was reversible error, Wike failed to properly preserve this point for appeal given that his counsel failed to bring rule 3.780(

c) to the attention of the court until after the trial. Unquestionably, if trial counsel fails to properly preserve this issue for review, the issue is procedurally barred. Quince v. State, 414 So.2d 185 (Fla.), cert. denied, 459 U.S. 895, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982); Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978); Staples v. State, 298 So.2d 545 (Fla. 2d DCA 1974). In this case, however, we find that the issue was properly preserved.

Wike requested that he be al-. lowed to present the concluding argument on more than one occasion, and the State erroneously advised the trial judge that no rule governed Wike’s request. Moreover, we find it amazing that Wike’s counsel, the prosecutor, and the trial judge were all unfamiliar with rule 3.780, a seventeen-year-old rule of criminal procedure expressly written to control the penalty phase proceedings in capital cases.

Accordingly, because the trial judge erroneously denied Wike his vested procedural right to conclude the closing arguments before the jury, we find that we must reverse his sentence and again remand this cause for resentencing. It is so ordered. OVERTON, SHAW, KOGAN and HARDING, JJ., concur. ANSTEAD, J., concurs specially with an opinion, in which OVERTON, SHAW, KOGAN and HARDING, JJ., concur. GRIMES, C.J., dissents with an opinion, in which WELLS, J., concurs. WELLS, J., dissents with an opinion, in which GRIMES, C.J., concurs. . The facts of this case are set forth in Wike v. State, 596 So.2d 1020 (Fla.1992). .

Wike asserts that: (1) the trial judge erred in denying him final closing argument; (2) he was denied effective assistance of counsel; (3) the trial judge erred in allowing the State to make a "mercy” argument; (4) the trial judge failed to make an adequate inquiry as to whether Wike knowingly, voluntarily, and intelligently wanted to represent himself; (5) the trial judge improperly admitted victim impact evidence; (6) the trial judge improperly refused to permit Wike to question the jury about or present evidence of the other sentences he received in connection with this crime; (7) the trial judge gave improper jury instructions on the aggravating circumstances; (8) the trial judge erred in refusing to instruct the jury on the mitigating circumstance of extreme mental or emotional disturbance; (9) the trial judge improperly limited the testimony of a defense expert; (10) the trial judge erred in admitting evidence of the surviving sister's injuries; and (11) the trial judge improperly admitted the videotaped testimony of a state witness. .

In his order denying Wike’s motion for mistrial, the trial judge stated that Wike had to object after the close of the State's argument for the issue to be properly preserved, citing Hall v. State, 119 Fla. 38, 160 So. 511 (1935). Notably, in Green v. State, 80 So.2d 676 (Fla.1955), this Court stated that the ruling in Hall did not apply to a situation where, as here, the court had previously made a specific ruling on the question.