MIGUEL LAMADRID, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in failing to grant a mistrial when an alternate juror was not timely discharged and was present during jury deliberations.
An alternate juror was not discharged at the same time the jury retired to consider its verdict and was present in the jury room during deliberations.…
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PER CURIAM.
Appellant, Miguel Lamadrid, appeals his conviction and sentence for the offense of aggravated battery.
The principal point for our consideration is whether the trial court erred in failing to grant a mistrial where the alternate juror was not timely discharged and was present during jury deliberations. We find error and reverse.
Rule 3.280(a), Florida Rules of Criminal Procedure states in pertinent part:
Except as hereinafter provided regarding capital cases, an alternate juror, who does not replace a principal juror, shall be discharged at the same time the jury retires to consider its verdict.
This rule was not followed in the instant case and the alternate juror was present in the jury room during deliberations.
In Berry v. State, 298 So. 2d 491 (Fla. 4th DCA 1974), the court reversed appellant’s conviction, holding that it was fundamental error to allow an alternate juror to accompany a jury into the jury room during its consideration of the case, even though the alternate juror did not participate in the deliberations. The court held the language of the rule to be mandatory and not permissive.
We have concluded, in the light of the holding in Berry, that the trial court’s denial of a mistrial was reversible error. In view of our conclusion that the appellant is entitled to a new trial, we find it unnecessary to consider the other points raised.
Reversed and remanded for a new trial.
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Petra Eickmeyer v. Dunkin Donuts OF Am., Inc., 507 So. 2d 1193 (Fla. 3d DCA 1987)…as any other unauthorized person2 — is so much as present during the deliberations even though, imlike the present case, he remains silent and contributes nothing to the result. Berry v. State, 298 So. 2d 491 (Fla. 4th DCA 1974); Lamadrid v. State, 437 So. 2d 208 (Fla. 3d DCA 1983) (following Berry); Fischer v. State, 429 So. 2d 1309 (Fla. 1st DCA 1983) (same), pet. for review denied, 438 So. 2d 834 (Fla.1983). While these decisions involve criminal prosecutions, there is no reason why a different rule shou…
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Jacksonville Racing Ass'n, Inc. v. Harrison, 530 So. 2d 1001 (Fla. 1st DCA 1988)…erations. Many of appellants’ cited decisions in support of reversal involve situations where the alternate was present during the course of deliberations. Eickmeyer v. Dunkin Donuts of America, 507 So. 2d 1193 (Fla. 3d DCA 1987); Lamadrid v. State, 437 So. 2d 208 (Fla. 3d DCA 1983); Berry v. State, 298 So. 2d 491 (Fla. 4th DCA 1974). Here, there appears to be no reasonable possibility that the alternate participated in any substantive deliberations, but was present during the foreperson’s election and the de…
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Bouey v. State, 762 So. 2d 537 (Fla. 5th DCA 2000)…be discharged at the same time the jury retires to consider its verdict.” This rule is mandatory, not permissive, and it requires discharge of the alternate juror when the principal jurors retire to deliberate. See Berry; see also Lamadrid v. State, 437 So. 2d 208 (Fla. 3d DCA 1983). Thus, the alternate juror is considered a “stranger” to the deliberations. Id. The courts of this state have so carefully and zealously guarded against any intrusions into the deliberations of the jury that the presence of any s…
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- Berry v. State, 298 So. 2d 491 (Fla. 4th DCA 1974)