HUMBERTO BANOS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Humberto Banos was convicted of armed robbery, armed kidnapping, and firearm offenses after a jury inadvertently received a copy of the information containing a reference to a severed count of possession of a firearm by a convicted felon. The appellate court reversed, holding that the jury's exposure to evidence regarding the severed charge constituted fundamental error requiring a new trial.
The court held that the jury's consideration of the severed convicted felon count through the information constituted fundamental error and extraneous influence to the defendant's prejudice, requiring reversal of the convictions and a new trial regardless of the trial court's denial of the mistrial and new trial motions.
[1] A mistrial is mandated when jurors consider matters not in evidence to the prejudice of a defendant.
[2] Submitting a document to the jury that contains a reference to a severed count, which could not properly have been introduced into evidence, constitutes an extraneous inf…
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Join FLexlaw to unlock all legal intelligence“It is clearly apparent from the record in this case that the jurors, having noted the reference to the severed convicted felon count in the information submitted to them, were subjected to an extraneous influence in their deliberations, which we hold was fundamentally improper.”
Establishes that the court found the jury's exposure to the severed count reference to be fundamentally improper extraneous influence
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Join FLexlaw to unlock all legal intelligenceBanos was charged with three counts of armed robbery, one count of armed kidnapping, one count of possession of a firearm while engaged in the commiss…
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PER CURIAM.
The defendant was charged by information with three counts of armed robbery, one count of armed kidnapping, one count of possession of a firearm while engaged in the commission of a felony and one count of possession of a firearm by a convicted felon.
Pursuant to a motion by the defendant, the convicted felon firearm count was severed. When the jury retired to deliberate at the close of the trial on the remaining counts, they were permitted to take with them a copy of the information. One page of the document contained a reference to the severed count. The jurors inquired of the court during their deliberations whether they should have been given the page containing the reference to this count. Defense counsel stated a curative instruction would be insufficient to cure the taint, and moved for a mistrial, which the court denied.
Pursuant to the jury’s verdict of guilty as charged on all five counts, the court adjudicated the defendant guilty and imposed sentence. The defendant’s motion for new trial, again raising the issue of undue influence upon the jury from the improper reference to the severed count in the information submitted to them, was denied.
On appeal the defendant urges reversal of his conviction and sentences on the ground that the trial court erred in denying his motions for mistrial and for new trial after the jury inadvertently learned of the severed convicted felon charge, which could not properly have been introduced in evidence. We find merit in this contention and reverse.
It is clearly apparent from the record in this case that the jurors, having noted the reference to the severed convicted felon count in the information submitted to them, were subjected to an extraneous influence in their deliberations, which we hold was fundamentally improper. The law is well settled that where jurors cpnsider matters not in evidence, to the prejudice of a defendant, a new trial is mandated. Russ v. State, 95 So. 2d 594, 601 (Fla.1957); Meixelsperger v. State, 423 So. 2d 416 (Fla. 2d DCA 1982); Nelson v. State, 362 So. 2d 1017 (Fla. 3d DCA 1978). Accordingly, we reverse the conviction and sentences and remand for a new trial.
Reversed and remanded for a new trial.
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Jones v. State, 128 So. 3d 199 (Fla. 1st DCA 2013)…. 2d DCA 2000)). See also Daw-kins v. State, 605 So. 2d 1329, 1329-30 (Fla. 2d DCA 1992) (question suggesting felony conviction, coupled with assertion that defendant was a convicted felon during closing argument, required mistrial); Banos v. State, 521 So. 2d 302, 303 (Fla. 3d DCA 1988) (jurors made inquiry to the judge during their deliberations, making clear they “were subjected to an extraneous influence in their deliberations, which we hold was fundamentally improper. The law is well settled that where j…
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Higgins v. State, 885 So. 2d 994 (Fla. 4th DCA 2004)…n of a firearm by a convicted felon. The court granted a pretrial motion to sever this count from the remaining charges. In his rule 3.850 motion, Higgins argued that it was fundamental error to allow the jury to see this charge. See Banos v. State, 521 So. 2d 302 (Fla. 3d DCA 1988). Higgins did not testify at trial. As a result, absent this alleged error, the jury would not have known that he was a convicted felon. Statements in the trial transcript suggest that an amended information was prepared. However,…
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McCALLUM v. State, 537 So. 2d 122 (Fla. 1st DCA 1988)…aid he was. This is not a case where the jury was advised or permitted to hear testimony of a severed count of possession of a firearm by a convicted felon in a burglary and theft trial. Such an error would obviously be prejudicial. Banos v. State, 521 So. 2d 302 (Fla. 3d DCA 1988). Neither is Pender v. State, 530 So. 2d 391 (1st DCA 1988) applicable. In Pender the defendant was charged with two counts of burglary and grand theft. The burglary and theft in each count were separate offenses committed on diffe…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Russ v. State, 95 So. 2d 594 (Fla. 1957)
- Grady Nelson v. State, 362 So. 2d 1017 (Fla. 3d DCA 1978)
- Meixelsperger v. State, 423 So. 2d 416 (Fla. 2d DCA 1982)