JAMES MCGLYNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James McGlynn was convicted of aggravated battery by jury verdict, but the Florida District Court of Appeal reversed because the trial court responded to a jury question during deliberations without first notifying counsel or allowing them to object or provide input on the response.
The trial court committed per se reversible error by responding to the jury's question without first giving defense counsel meaningful opportunity to have input on the court's response, in violation of Florida Rule of Criminal Procedure 3.410 and precedent established in Mills v. State.
[1] A trial court commits prejudicial error by responding to a jury's request for additional instructions or testimony without the presence of and opportunity for participati…
[2] The procedural requirements of Florida Rule of Criminal Procedure 3.410 apply to any communication from the court to the jury that constitutes an instruction or direction…
Previewing 2 of 6 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“The right to participate, set forth in Ivory, includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored.... The particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record.”
Establishes the constitutional protection for counsel participation in responding to jury questions and identifies the specific error violated here
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcGlynn was tried and found guilty of aggravated battery by jury verdict on May 22, 1996. During jury deliberations, the jury submitted a question to …
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DONNER, AMY STEELE, Associate Judge.
By a jury verdict rendered on May 22, 1996, defendant was found guilty of aggravate ed battery. Defendant’s sole argument on appeal is that the trial court erred in responding to a jury question while the jury was deliberating, without first offering counsel an opportunity to offer a proposed answer or raise objections. We agree and reverse.
According to Florida Rule of Criminal Procedure 3.410:
After the jurors have retired to consider their verdict, if they request additional instructions ... they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions_ The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant
(Emphasis supplied).
In Mills v. State, 620 So. 2d 1006 (Fla.1993), our supreme court concluded that:
The right to participate, set forth in Ivory,
includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored.... The particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record.
Based on the record before us, we conclude that the trial court responded to the jury’s question before giving defense counsel any meaningful opportunity to have input on the court’s response. As such error is per se reversible, we give no consideration as to whether it may be harmless.
We take this opportunity to inform the trial court that a better practice before allowing the jury to return to the courtroom would be to allow counsel for both sides to have an opportunity to express their concerns or provide input in the court’s contemplated response to the jury’s questions. Also, giving the jury a written copy of the jury instructions would have obviated this appeal. We encourage trial courts to seek input from attorneys prior to responding to a jury’s question as this judge has previously been instructed. See Jenkins v. State, 688 So. 2d 422 (Fla. 4th DCA 1997); Aljak v. State, 681 So. 2d 896 (Fla. 4th DCA 1996); see also Meyer v. Singletary, 610 So. 2d 1329 (Fla. 4th DCA 1992).
WARNER and FARMER, JJ., concur. . Ivory v. State, 351 So. 2d 26 (Fla.1977).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rogers v. State, 844 So. 2d 728 (Fla. 5th DCA 2003)…ary v. State, 818 So. 2d 686 (Fla. 5th DCA 2002). . Williams v. State, 488 So. 2d 62 (Fla.1986); Ivory v. State, 351 So. 2d 26 (Fla.1977); Stephens v. State, 779 So. 2d 580 (Fla. 5th DCA), review denied, 796 So. 2d 538 (Fla.2001); McGlynn v. State, 697 So. 2d 571 (Fla. 4th DCA 1997). . State v. Franklin, 618 So. 2d 171 (Fla.1993). . State v. Merricks, 831 So. 2d 156 (Fla.2002). . State v. Chaves-Mendez, 809 So. 2d 910 (Fla. 5th DCA 2002). . Wofford v. State, 819 So. 2d 891 (Fla. 1st DCA 2002). . Gilliam…
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Delvin Woods v. State, 712 So. 2d 1184 (Fla. 4th DCA 1998)…So. 2d 171, 173 (Fla.l993)(Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless). This court in McGlynn v. State, 697 So. 2d 571 (Fla. 4th DCA 1997), held that the trial court reversibly erred in responding to a jury question while the jury was deliberating, without first offering counsel an opportunity to offer a proposed answer or raise objections: we conclude that the tri…
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Jackson v. State, 877 So. 2d 944 (Fla. 4th DCA 2004)…sue of error associated with the trial court’s alleged failure to provide defense counsel with an opportunity to participate in formulating responses to the jury’s questions. See Woods v. State, 712 So. 2d 1184 (Fla. 4th DCA 1998); McGlynn v. State, 697 So. 2d 571 (Fla. 4th DCA 1997). Compare Lavin v. State, 861 So. 2d 488 (Fla. 4th DCA 2003). If Jackson requests and qualifies for appointed counsel, the trial court shall grant such relief. Jackson shall have sixty days from the date of the issuance of the man…
Authorities Cited
- Donnie Lee Ivory v. State, 351 So. 2d 26 (Fla. 1977)
- Mills v. State, 620 So. 2d 1006 (Fla. 1993)
- Meyer v. Singletary, 610 So. 2d 1329 (Fla. 4th DCA 1992)
- Elsadig Aljak v. State, 681 So. 2d 896 (Fla. 4th DCA 1996)
- Ocie Jenkins v. State, 688 So. 2d 422 (Fla. 4th DCA 1997)