DANNY MICHAEL TAYLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Taylor appeals his attempted robbery conviction on the ground that the trial judge erred in permitting the jury to separate and go home overnight during deliberations. The Fifth District Court of Appeal affirms, holding that allowing jury separation overnight in non-capital cases is not reversible error per se, though the court certifies the issue as one of great public importance.
It is not reversible error as a matter of law for a trial judge to permit a jury to separate overnight during its deliberations in a non-capital case. However, the court certifies the question as one of great public importance for the Florida Supreme Court.
[1] In a non-capital case, it is not reversible error as a matter of law for a trial judge to permit the jury to separate overnight during deliberations.
[2] A trial court may allow a jury to separate overnight during deliberations in a non-capital case, provided a cautionary instruction is given.
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Join FLexlaw to unlock all legal intelligence“it is not reversible error as a matter of law for a trial judge to permit a jury to separate overnight during its deliberations in a non-capital case”
The court's holding establishing the permissibility of jury separation overnight in non-capital cases
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Join FLexlaw to unlock all legal intelligenceDuring jury deliberations in an attempted robbery case, it became apparent the jury would not reach a verdict that evening. The trial judge announced …
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COWART, Judge.
This case involves the question of whether a trial judge may permit a jury to separate and go home overnight after it has commenced deliberation in a non-capital case.
When it became apparent to the trial judge that the jury deliberating an attempted robbery case would be unable to reach a verdict during the evening, the trial judge announced that he would allow the jury to separate and go home overnight. Counsel for the defendant objected. The trial court gave the jury a cautionary instruction not to discuss the case with anyone and not to form or fix any opinion about the outcome of the case until jury deliberations were concluded and then dismissed the jury to reconvene and continue its deliberations the next morning. There is no suggestion of any outside influence on the jury or of any jury impropriety. The defendant appeals, claiming the trial court erred.
In the absence of a definitive supreme court case or rule of procedure, we follow Engle v. State, 438 So. 2d 803 (Fla.1983), cert. denied, Engle v. Florida, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 75 (1984), and Franklin v. State, 472 So. 2d 1303 (Fla. 1st DCA 1985), and hold that it is not reversible error as a matter of law for a trial judge to permit a jury to separate overnight during its deliberations in a non-capital case. Compare Livingston v. State, 458 So. 2d 235 (Fla.1984), and Raines v. State, 65 So. 2d 558 (Fla.1953).
Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) we certify the following question to be of great public importance:
After submission of the cause to the jury for deliberations in the trial of a non-capital case, is it reversible error per se for a trial court to authorize the jury to separate overnight, or for some other definite time fixed by the court, and then reassemble and continue its consideration of a verdict?
AFFIRMED.
ORFINGER, J., concurs.
DAUKSCH, J., dissents with opinion.
DAUKSCH, Judge,
dissenting:
I respectfully dissent.
For the reasons stated in, and on the authority of, Livingston v. State, 458 So. 2d 235 (Fla.1984), I am of the opinion it is reversible error to allow a jury to separate and go home overnight once it has been sent out to deliberate. Should the jury’s deliberations entail a break for meals or sleep then they should be sequestered and housed and fed away from any potential or possible outside influence, it is of no real legal significance to me that this criminal proceeding is a non-capital one while Livingston is a capital case. The degree of punishment should not affect the principle.
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Taylor v. State, 498 So. 2d 943 (Fla. 1986)…BOYD, Justice. Pursuant to article Y, section 3(b)(4), of the Florida Constitution, petitioner Danny Taylor seeks review of the decision below, Taylor v. State, 481 So. 2d 970 (Fla. 5th DCA 1986), affirming his conviction of attempted robbery. The district court of appeal certified the following question as one of great public importance: After submission of the cause to the jury for deliberations in the trial of a nonca…
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Ulloa v. State, 486 So. 2d 1373 (Fla. 3d DCA 1986)…(Fla.1986); and the guarantee of a direct appeal to the Florida Supreme Court, see Art. V, § 3(b)(1), Fla.Const.), are arguably different from rules, like Livingston, designed to insure the integrity of the fact-finding process. See Taylor v. State, 481 So. 2d 970 (Fla. 5th DCA 1986) (Dauksch, J., dissenting) (the principle of Livingston should not be affected by degree of punishment; the rule should apply to non-capital as well as capital cases). Whether the present case should be deemed a capital case depe…
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Fowler v. State, 483 So. 2d 757 (Fla. 5th DCA 1986)…rning to resume deliberations. Livingston v. State, 458 So. 2d 235 (Fla.1984), deemed this procedure to be error in a capital murder case but did not specifically hold it to be error in a non-capital murder case such as this one. In Taylor v. State, 481 So. 2d 970 (Fla. 5th DCA 1986), this court held the procedure to be not error in a non-capital, attempted robbery case. Neither case held the error to be fundamental, probably because that question was not before either of those courts. In both of those cases…1 / 3
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Silkwood v. Kerr-McGee Corp., 465 U.S. 1074 (U.S. 1984)
- Engle v. State, 438 So. 2d 803 (Fla. 1983)
- Livingston v. State, 458 So. 2d 235 (Fla. 1984)
- Raines v. State, 65 So. 2d 558 (Fla. 1953)
- Franklin v. State, 472 So. 2d 1303 (Fla. 1st DCA 1985)