DANIEL WRIGHT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A defendant's counsel has an opportunity to be heard when informed of the judge's intended ruling on a jury question, even if counsel remains silent.
The trial judge received a written question from the jury and, in the presence of both attorneys, stated he would not allow them to read a transcript,…
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PER CURIAM.
Defendant Daniel Wright (“defendant”), appeals his conviction claiming that the trial judge erred in answering a jury question without affording defendant’s counsel an opportunity to be heard. We affirm.
After the jury submitted a written question to the court, the trial judge requested that the attorneys appear before him. Once the state and defense attorneys were present, the trial judge stated:
The jury sent in a written question. Could we read the transcript of Officer Adams’ testimony? My answer is no you must rely on your collective memories.... Just for the record that’s why I brought you down. The record will note that the defense attorney and the State Attorney are present. Okay. That’s it.
Wright claims that he did not have an opportunity to be heard before the trial judge answered the jury’s question.
It is improper for a trial judge to answer a jury question without affording the prosecution and defense notice and an opportunity to be heard. See Ivory v. State, 351 So. 2d 26 (Fla.1977). As stated in Ivory: “This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored.” Ivory v. State, 351 So. 2d at 28.
Here, defendant’s counsel was informed how the judge intended to rule. At no time did the trial judge refuse a request to hear arguments or any objections. After the judge said “okay,” defendant’s counsel had an opportunity to object and, apparently, chose not to. The fact that Wright’s counsel remained silent does not mean that he did not have an opportunity to be heard. Accordingly, we affirm.
Affirmed.
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Wright v. State, 797 So. 2d 647 (Fla. 3d DCA 2001)…PER CURIAM. We deny the petition of Daniel Wright for a writ of habeas corpus whereby he alleges that his appellate counsel was ineffective. We have taken judicial notice of the briefs in the direct appeal, Wright v. State, 759 So. 2d 730 (Fla. 3d DCA 2000). Assuming that the points were raised by a proper motion for judgment of acquittal, it is plain that the evidence was legally sufficient to go to the jury on the question of whether the defendant was correctly identified as the…
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Paige v. State, 802 So. 2d 1161 (Fla. 1st DCA 2001)…a per se rule is nothing more than a determination that certain types of errors are always harmful, i.e., prejudicial. Thus, per se reversible errors are errors which can never be treated as harmless error). The state’s reliance on Wright v. State, 759 So. 2d 730 (Fla. 3d DCA 2000), is misplaced. In Wright, the jury submitted a written question. Once the attorneys were present, the judge advised the attorneys of the question and how he intended to rule. Wright argued on appeal that he did not have an opportu…
Authorities Cited
- Donnie Lee Ivory v. State, 351 So. 2d 26 (Fla. 1977)