RONALD L. ZARATTINI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Zarattini appeals his cocaine possession conviction, challenging the trial court's decision to provide the jury with only a written instruction on the definition of possession while refusing to provide all written instructions during deliberations. The court reversed, holding that Florida Rule of Criminal Procedure 3.400(c) requires literal compliance: if any written instruction is given, all written instructions must be provided.
The trial court committed reversible error. Florida Rule of Criminal Procedure 3.400(c) requires literal compliance: if any instruction is taken into the jury room in writing, all instructions must be taken. The trial court was obligated to provide the complete set of written instructions, not just the possession definition.
[1] A trial court commits reversible error by furnishing a jury with a portion of written instructions when the jury requests written instructions.
[2] Florida Rule of Criminal Procedure 3.400(c) requires that if any instruction is taken to the jury room in writing, all instructions must be taken.
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Join FLexlaw to unlock all legal intelligence“if any instruction is taken all the instructions shall be taken”
The controlling language of Florida Rule of Criminal Procedure 3.400(c), which requires literal compliance
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Join FLexlaw to unlock all legal intelligenceZarattini was convicted of possession of cocaine following a search of his room. During jury deliberations, the jury requested a written copy of the p…
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LETTS, Judge.
The defendant appeals the trial court giving the jury a partial written re-instruction. We agree that was error and reverse.
During its deliberations, the jury asked for a copy of the definition of possession of cocaine. The trial court, over defense counsel’s objection, read aloud the definition of the term “possession.” The jury, thereafter, renewed its request to have the possession definition in writing. A completed copy of all the instructions was being typed, but the state objected to the submission of it. As a result, the trial court decided to give the jury a written instruction defining the elements of possession. Defense counsel objected.
The 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.
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.
Despite this authority, the state cites Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986), rev. dismissed, 520 So. 2d 575 (Fla.1988), which holds that a violation of Florida Rule of Criminal Procedure 3.400 does not require automatic reversal. The prejudice must vitiate the entire trial. In Myers, a juror took his notes into the jury room. That fact is significantly different from the facts sub judice. More importantly, Simmons is directly on point and the decision was rendered after Myers. We, therefore, hold that the trial court erred in not sending the jury the entire written instruction.
Accordingly, the judgment and sentence are reversed and we remand for a new trial.
REVERSED AND REMANDED.
DOWNEY and WALDEN, JJ., concur.
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State v. Franklin, 618 So. 2d 171 (Fla. 1993)…he written instructions when it retires for deliberations. Moreover, it has been [*174] held that when a jury is given written instructions, it must be given all the instructions. Byrd v. State, 582 So. 2d 640 (Fla. 3d DCA 1991); Zarattini v. State, 571 So. 2d 553 (Fla. 4th DCA 1990). Therefore, even if defense counsel had been notified of the jury’s request, an objection to giving the jury the written instructions could not have prevailed. Because the jurors simply received a written copy of the oral instruc…
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Pettit v. State, 612 So. 2d 1381 (Fla. 2d DCA 1992)…e written instructions included the judge’s handwritten notes and bracketed material which was not read to the jury. It was error for the trial court to give the jury only some of the written instructions. Fla.R.Crim.P. 3.400(c); Zarattini v. State, 571 So. 2d 553 (Fla. 4th DCA 1990). In this case, however, the error was invited. The state objected to the judge giving the jury only some of the written instructions, saying that it “is not normally appropriate.” Defense counsel, however, stated the following: “…
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Wilson v. State, 746 So. 2d 1209 (Fla. 5th DCA 1999)…ires reversal. See, e.g., Bowe v. State, 600 So. 2d 26 (Fla. 4th DCA 1992) (reversible error to give the jury written instruction only on charge requested; reversible error occurs when a court fails 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…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Henry v. State, 359 So. 2d 864 (Fla. 1978)
- Myers v. State, 520 So. 2d 575 (Fla. 1988)
- Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986)
- 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)
- Avery Simmons v. State, 541 So. 2d 171 (Fla. 4th DCA 1989)