DAVID TERRENCE STEPHENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the supplemental record satisfied due process requirements, showing the defendant and his attorney were present when the trial court responded to jury questions.
[1] A trial judge may not respond to a jury's request for additional instructions without the prosecutor, the defense attorney, and the defendant being present and having an…
[2] A violation of the rule requiring the presence of counsel and the defendant when responding to jury questions is per se reversible error.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of aggravated battery and other charges. He appealed, alleging the trial court erred by failing to ensure his and his atto…
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Appellant, David Terrence Stephens, was convicted of aggravated battery with a deadly weapon or great bodily injury and other charges and sentenced as an habitual offender to forty (40) years in the Department of Corrections. He appeals his conviction and sentence and alleges that the trial court erred by failing to insure that he and his attorney were present when the trial court responded to three jury questions.
During deliberations, on three separate occasions, the jury sent out questions. Our supreme court has held that trial judges may not respond to a jury’s request for additional instructions without the prosecutor, the defense attorney and the defendant being present and having an opportunity to participate in the response being considered by the court. A violation of that rule is per se reversible error. Williams v. State, 488 So. 2d 62 (Fla.1986); Ivory v. State, 351 So. 2d 26 (Fla.1977).
The original record submitted to this Court clearly showed that defense counsel participated in responding to at least one of the jury’s questions but the record was silent as to defense counsel’s presence during discussions regarding the remaining questions. The record was also silent as to Stephens’ presence during any of the discussions.
Pursuant to Alexander v. State, 575 So. 2d 1370 (Fla. 4th DCA 1991), this Court relinquished jurisdiction to the trial court to fill in the gaps in the original record to determine if counsel and Stephens were present during the discussions. Having now reviewed the supplemental transcript, we are satisfied that defense counsel and Stephens were present during the discussions regarding the jury’s questions and find no reversible error. It is the burden of the trial court, or the State, to make certain that the record reflects that all requirements of due process, including the opportunity to be heard on responses to jury questions have been met. Alexander, 575 So. 2d at 1371. Trial judges and attorneys representing the State need to be mindful of this obligation.
AFFIRMED.
PETERSON and GRIFFIN, JJ., concur.
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Rogers v. State, 844 So. 2d 728 (Fla. 5th DCA 2003)…not explicitly stating so, were based on both Miranda violations and involuntariness. . Clary 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 9…
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Authorities Cited
- Donnie Lee Ivory v. State, 351 So. 2d 26 (Fla. 1977)
- Williams v. State, 488 So. 2d 62 (Fla. 1986)
- Alexander v. State, 575 So. 2d 1370 (Fla. 4th DCA 1991)