ARMANDO DIAZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Diaz was convicted of cocaine sale after a brief trial where he sold two cocaine rocks to an undercover police officer. On appeal, he challenged a jury instruction prohibiting note-taking and transcript requests, but the court affirmed because he failed to object at trial and the instruction did not constitute fundamental error in this clear-cut case.
The court held that while the jury instruction may have been technically ill-advised, it cannot result in reversal absent preservation of the issue at trial. The instruction did not constitute fundamental error because there is no indication it affected the jury's deliberations in this clear-cut case, and it did not deny due process or the right to a fair trial.
[1] A jury instruction prohibiting note-taking and transcript requests, even if technically ill-advised, does not warrant reversal absent a timely objection and preservation…
[2] A jury instruction that prohibits note-taking and transcript requests does not constitute a denial of due process or a violation of the right to a fair trial if the issue…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While this instruction may well have been technically ill-advised, see Fla.R.Crim.P. 3.410, it cannot result in reversal in the absence of preservation below.”
Establishes that even questionable jury instructions require objection at trial to form basis for appeal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDiaz sold two cocaine rocks to a police officer while being observed by another officer. The trial lasted less than one day and involved two witnesses…
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SCHWARTZ, Chief Judge.
After a less-than-one-day, two-witness trial, which demonstrated without dispute that Diaz had sold two cocaine rocks to a police officer while he was being observed by another one, the defendant was found guilty of sale or delivery of cocaine.1 The only point on appeal claims the right to a new trial because, without objection, the trial court instructed the jury at the beginning of the case that:
Throughout the trial you have to remain alert and listen attentively. You may not take notes and again, I keep referring to TV, things happen on there, people think it is real life. You can’t send a note and ask us to send a transcript of what a witness said. You must rely upon your collective recollection as to what the testimony was from the witness stand.
While this instruction may well have been technically ill-advised, see Fla.R.Crim.P. 3.410, it cannot result in reversal in the absence of preservation below. Particularly because there is no reason to believe that the “note-taking” or “reading back” issues were of any concern to the jury at all in this utterly open-and-shut case,2 it surely cannot be said that the charge resulted in a denial of due process, affected the defendant’s right to an essentially fair trial or fell within any other accepted definition of fundamental error of which we are aware. State v. Jones, 377 So. 2d 1163 (Fla.1979); Castor v. State, 365 So. 2d 701 (Fla.1978); State v. Smith, 240 So. 2d 807 (Fla.1970). (Indeed, although we need not reach the point, it seems likely that the instruction, even if the subject of an objection at the trial, was no more than harmless.3) Hendrickson v. State, 556 So. 2d 440 (Fla. 4th DCA 1990) is apparently contrary to this conclusion. We completely disagree with that decision.
Affirmed.
.The trial, which was the very definition of the proverbial "slow plea,” occurred instead of the faster and more efficient process solely because the defendant’s past record gave him such a high point total under the guidelines that he had little to lose and a chance to gain through a quirk acquittal (or a serendipitous error, such as the one claimed here) by pursuing that course. In the event, his sentence was nine years in prison.
. Compare LaMonte v. State, 145 So. 2d 889 (Fla. 2d DCA 1962).
. See supra note 1.
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Citator
Cited By
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Pineiro v. State, 573 So. 2d 161 (Fla. 4th DCA 1991)…GARRETT, Judge, concurring specially. I am bound to follow the en banc opinion of this court. However, I write to note my dissent in Farrow. Further, Diaz v. State, 567 So. 2d 18 (Fla. 3d DCA 1990) is apparently contrary to my dissent. I completely disagree with that decision. Whether a trial takes one day or one month, a defendant is entitled to a proper trial. I repeat, one should not underestimate the power of a jury to r…
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Datoral Smith v. State, 990 So. 2d 1162 (Fla. 3d DCA 2008)…the jury from requesting a read-back of testimony, we cannot conclude that the error so vitiated the defendant’s right to a fair trial that it constituted fundamental error. See Davis v. State, 760 So. 2d 977, 978 (Fla. 3d DCA 2000); Diaz v. State, 567 So. 2d 18, 19 (Fla. 3d DCA 1990); Farrow v. State, 573 So. 2d 161, 163 (Fla. 4th DCA 1991); see also Fla. R.Crim. P. 3.410. Third, Smith argues that the trial court erred in sentencing him as a prison releasee reoffender, pursuant to section 775.082(9), Flor…
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Hayes v. State, 748 So. 2d 1042 (Fla. 3d DCA 1999)…ember it.” Defendant now claims that the court’s comment was error because it suggested that the asking of any question by the jury would be futile. This comment by the court was not objected to, so we reject defendant’s argument. See Diaz v. State, 567 So. 2d 18, 19 (Fla. 3d DCA 1990)(flnd-ing that a similar instruction would not result in reversal in the absence of preservation below). We decline to express an opinion on the appropriateness or inappropriateness of the instruction. We find merit in defenda…
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
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- State v. Smith, 240 So. 2d 807 (Fla. 1970)
- State v. Wiley Jones, Jr., 377 So. 2d 1163 (Fla. 1979)
- Vira P. Stansbury v. Stansbury, 145 So. 2d 889 (Fla. 3d DCA 1962)
- Hendrickson v. State, 556 So. 2d 440 (Fla. 4th DCA 1990)