RUFUS NORTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that communication with the jury without defense counsel's presence or notice was harmless error when it concerned a charge of which the defendant was acquitted.
During jury deliberations on burglary and aggravated assault charges, the jury asked a question about the burglary charge, and the judge responded thr…
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LEHAN, Judge.
Defendant appeals from the trial court’s denial of defendant’s motion for a new trial, contending that reversible error occurred when during the jury’s deliberations the court communicated with the jury without the presence of, or notice to, defense counsel. We affirm.
Defendant was being tried on charges of burglary and aggravated assault. During the jury’s deliberations the jury advised the trial judge, through the bailiff, that the jury had a question regarding the burglary charge. The nature of the question was not given. The judge responded, through the bailiff, that the jury would have to rely upon its memory. No record was made of either communication. The jury returned a verdict of not guilty on the burglary charge and guilty on the aggravated assault charge.
The communications having concerned the burglary charge on which defendant was found not guilty, we conclude that the error in communicating with the jury without the presence of, or notice to, defense counsel was harmless. We do not conclude that Williams v. State, 488 So. 2d 62 (Fla.1986), which involved a trial on only one charge of which defendant was convicted, requires otherwise. Cf. Hitchcock v. State, 413 So. 2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982).
Affirmed.
DANAHY, C.J., and SCHOONOVER, J., concur.
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Porr v. State, 585 So. 2d 944 (Fla. 2d DCA 1991)…e urges that Porr’s convictions relating to drug transactions occurring on any other date and Firios’s convictions should be unaffected. We cannot agree. It appears that error can be segregated in the manner the state suggests. See Norton v. State, 516 So. 2d 1078 (Fla. 2d DCA 1987), review denied, 523 So. 2d 578 (Fla.1988) (error within the scope of Rule 3.410 considered harmless because it applied only to a burglary charge, of which Norton was acquitted, not to his aggravated assault conviction). However, a…
Authorities Cited
- Hitchcock v. State, 413 So. 2d 741 (Fla. 1982)
- Williams v. State, 488 So. 2d 62 (Fla. 1986)
- Strickland v. Zant, 459 U.S. 960 (U.S. 1982)