HOWARD EARL DEWITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that allowing a tape recording of jury instructions to go to the jury room with the jury is not reversible error unless prejudice to the accused is demonstrated.
The defendant was convicted of grand theft, and the trial judge allowed a tape recording of jury instructions and a tape player to accompany the jury …
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DAUKSCH, Judge.
This is an appeal from a conviction for grand theft.
The issue on appeal is whether the trial judge erred in permitting a tape-recording of the jury instructions, along with a tape player, to go with the jury to the jury room. We affirm because no prejudice to the accused was demonstrated on the rec ord on account of the alleged error. However, we do express our opinion that the practice should be discouraged. We say “practice” because we have other cases pending on the same issue from this trial court.
Although we are perhaps unable to think of all the possible problems which could occur by this practice we suggest it might encourage improper selective listening to instructions. That can be avoided by providing re-instruction by the judge, after consultation with counsel for the parties, of all appropriate instructions when a question occurs.
Mechanical difficulties are not uncommon and could result in confusion and less than satisfactory re-instruction by this method and it is hardly more difficult to have live re-instruction (best) or send in a complete set of instructions given (not best, but better).
Florida Rule of Criminal Procedure 3.400(c) permits, but does not require, the sending to the jury the set of instructions. It does not say “in writing,” nor are we so holding, but that would seem the preferred way so that all parties are sure the questions on the law the members of the jury have are answered fully and properly and more easily. It is patently easier to read from a set of instructions and even easier and safer to have the judge do it himself.
Because no error has been demonstrated in this case the conviction is affirmed.
AFFIRMED.
ORFINGER, C.J., and COWART, J., concur.
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Fayson v. State, 442 So. 2d 1030 (Fla. 5th DCA 1983)…PER CURIAM. Affirmed on the authority of Dewitt v. State, 442 So. 2d 1029 (Fla. 5th DCA 1983). DAUKSCH, COBB and SHARP, JJ., concur.…
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Taylor v. State, 503 So. 2d 991 (Fla. 5th DCA 1987)…will follow selection and swearing of the jury. For the foregoing reasons, we disapprove and discourage the procedure of requiring opening statements prior to swearing of the trial jury because of the great potential for error. Cf. DeWitt v. State, 442 So. 2d 1029 (Fla. 5th DCA 1983). In some future case, reversal may well result. AFFIRMED. UPCHURCH, C.J., and DAUKSCH, J., concur.…
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McCARTHY v. State, 446 So. 2d 252 (Fla. 5th DCA 1984)…ern about the problems attendant upon this practice, we have declined to reverse where no prejudice has been shown to result. Powell v. State, 443 So. 2d 433 (Fla. 5th DCA 1984); Fayson v. State, 442 So. 2d 1030 (Fla. 5th DCA 1983); DeWitt v. State, 442 So. 2d 1029 (Fla. 5th DCA 1983). In a more recent case, Woodring v. State, 448 So. 2d 529 (Fla. 5th DCA 1984), we reversed when the trial judge, upon the jury’s request for reinstruction, declined to verbally reinstruct and, instead, attempted to rely upon th…
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