AVERY SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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It was reversible error to furnish the jury with a portion of the instructions in writing, and other errors also occurred.
[1] A trial court commits reversible error by furnishing the jury with a portion of the instructions in writing when the jury requests a reinstruction, as Florida Rule of Cri…
[2] Allowing testimony regarding a marijuana cigarette found in a defendant's room, separate from the charged offense of cocaine possession, constitutes error.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of possession of cocaine found in his room. During deliberations, the jury requested a definition of constructive possessi…
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STONE, Judge.
The appellant was convicted of possession of cocaine. The drugs were found in a search of his room.
During deliberations the jury requested an instruction, for the second time, on the definition of constructive possession. The trial court, over a defense objection, decided to provide the instruction in writing.
Florida Rule of Criminal Procedure 3.400(c) provides:
Rule 3.400. Materials to the Jury Room
The court may permit the jury, upon retiring for deliberation, to take to the jury room:
(c) any instructions given; but if any instruction is taken all the instructions shall be taken.
The reinstruction given would not have been an abuse of discretion if given orally, as it was otherwise complete. See Henry v. State, 359 So. 2d 864 (Fla.1978); Lowe v. State, 500 So. 2d 578 (Fla. 4th DCA 1986). However, the rule with respect to written instructions has been held to require literal compliance. See Chappell v. State, 423 So. 2d 984 (Fla. 3d DCA 1982); Payne v. State, 395 So. 2d 284 (Fla. 3d DCA 1981); Morgan v. State, 377 So. 2d 212 (Fla. 3d DCA 1979), cert. denied, 389 So. 2d 1115 (Fla.1980). See also Faulk v. State, 296 So. 2d 614 (Fla. 1st DCA 1974). We see no reason to adopt a different interpretation of the rule, and conclude that it was reversible error to furnish the jury with a portion of the instructions in writing.
Additionally, we note, for the benefit of the court on remand, that it was error to allow testimony regarding a marijuana cigarette found in the room. Cf. Williams v. State, 110 So. 2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Richardson v. State, 528 So. 2d 981 (Fla. 1st DCA 1988). It was also error to give a principals instruction where the only charge against the defendant was the (constructive) possession of the drugs found in the room based on the defendant’s individual occupancy and control. We find no error in the denial of appellant’s motion for judgment of acquittal.
Therefore, the judgment and sentence are reversed and we remand for a new trial.
WARNER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wilson v. State, 746 So. 2d 1209 (Fla. 5th DCA 1999)…s to strictly comply with rule); Zarattini v. State, 571 So. 2d 553 (Fla. 4th DCA 1990) (submission to jury of only the written instruction on possession, in response to jury’s request, was reversible error in cocaine prosecution); Simmons v. State, 541 So. 2d 171 (Fla. 4th DCA 1989) (reversible error to furnish the jury with only a portion of the jury instructions in writing); Morgan v. State, 377 So. 2d 212 (Fla. 3d DCA 1979) (reversible error to submit some, but not all, of the standard jury instructions t…
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Zarattini v. State, 571 So. 2d 553 (Fla. 4th DCA 1990)…e defendant maintains that error resulted from the submission of only the instruction on possession. .He claims the jury was entitled to a copy of all the written instructions. The court has discussed this issue in its entirety in Simmons v. State, 541 So. 2d 171 (Fla. 4th DCA 1989). In that case, the court ruled that it was reversible error to furnish a jury with a portion of an instruction in writing: The appellant was convicted of possession of cocaine. The drugs were found in a search of his room. Duri…
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Bowe v. State, 600 So. 2d 26 (Fla. 4th DCA 1992)…ctions. This court has addressed the issue twice and both times found that reversible error occurs when, as here, the trial court fails to strictly comply with Rule 3.400(c). Zarattini v. State, 571 So. 2d 553 (Fla. 4th DCA1990); Simmons v. State, 541 So. 2d 171 (Fla. 4th DCA1989). We find no merit as to the remaining issue. REVERSED AND REMANDED FOR A NEW TRIAL. [*27] POLEN and FARMER, JJ., concur. GARRETT, J., specially concurs with opinion.…
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 (11 total)
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Williams v. Florida, 361 U.S. 847 (U.S. 1959)
- White v. Illinois, 361 U.S. 847 (U.S. 1959)
- Henry v. State, 359 So. 2d 864 (Fla. 1978)
- Faulk v. State, 296 So. 2d 614 (Fla. 1st DCA 1974)
- Morgan v. State, 377 So. 2d 212 (Fla. 3d DCA 1979)
- Jones v. State, 423 So. 2d 984 (Fla. 4th DCA 1982)
- Payne v. State, 395 So. 2d 284 (Fla. 3d DCA 1981)
- Lowe v. State, 500 So. 2d 578 (Fla. 4th DCA 1986)
- Arzell Brown, Jr. v. State, 528 So. 2d 981 (Fla. 2d DCA 1988)