KENNETH CALDWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Caldwell appealed his convictions for involuntary sexual battery, robbery, and breaking and entering while armed. The court reversed the involuntary sexual battery conviction due to a procedural error in how the trial judge responded to jury questions, but affirmed the other two convictions.
The court reversed the involuntary sexual battery conviction and remanded for a new trial because the judge's manner of responding to the jury's question violated procedural rules and created uncertainty about what instructions the jury actually received. The court affirmed the convictions for robbery and breaking and entering because appellant did not allege and the court could not discern any prejudice to those verdicts from the procedural violation.
[1] A trial court commits reversible error when it fails to answer jury inquiries in open court after notice to counsel for both the defendant and the prosecution.
[2] Communications with a jury must occur in open court in the presence of the defendant or their counsel.
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Join FLexlaw to unlock all legal intelligence“Inquiries from the jury must be answered in open court after notice to both the defendant's counsel and the prosecution. Fla.R.Crim.P. 3.410. No one is permitted to communicate with the jurors without permission from the court given in open court in the presence of the defendant or his counsel. Section 918.-07, Florida Statutes.”
Establishes the mandatory procedural requirements for responding to jury questions that the trial judge violated.
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Join FLexlaw to unlock all legal intelligenceCaldwell was convicted by jury of three felonies: involuntary sexual battery, robbery, and breaking and entering while armed with intent to commit a f…
The full statement of facts, procedural history, and disposition for this case are member content.
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BOARDMAN, Judge.
Appellant appeals the judgments and sentences for involuntary sexual battery (Case No. 75-1558), robbery (Case No. 75-1557), and breaking and entering while armed with intent to commit a felony (Case No. 75-1556). We have carefully considered the several points raised by appellant and find that only one is meritorious.
The jury found appellant guilty as charged, and he was sentenced to three consecutive 100-year terms. Prior to pronouncing sentence the judge said
while ya’ll were at lunch the jury sent out a question as to the difference between sexual battery and involuntary sexual battery, and I just sent word back that there was no difference. Apparently the terms are interplayed in the verdicts.
The judge’s statement is the only evidence in the record of this incident. We are un able to determine what additional instructions the jury actually received. The statement indicates that the judge may not have instructed the jury himself but relayed the instructions to the jury through a third party. Since it is uncertain what the jurors were told we cannot view this procedural violation as being harmless error.1 Inquiries from the jury must be answered in open court after notice to both the defendant’s counsel and the prosecution. Fla.R.Crim.P. 3.410. No one is permitted to communicate with the jurors without permission from the court given in open court in the presence of the defendant or his counsel. Section 918.-07, Florida Statutes.
Therefore we reverse the judgment on involuntary sexual battery and remand for a new trial. Appellant has not alleged that the court’s manner of responding to a question concerning the involuntary sexual battery charge in any way tainted the jury verdict on the other two counts, and we are unable to discern from our independent review of the record any prejudice to the other counts. Accordingly we affirm the judgments and sentences in Case Nos. 75-1556 and 75-1557.
AFFIRMED in part, and REVERSED and REMANDED in part.
McNULTY, C. J., and SCHEB, J., concur. . Randolph v. State, 336 So. 2d 673 (Fla. 2d DCA 1976); Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970); Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960). The decision in Ennis v. State, 300 So. 2d 325 (Fla. 1st DCA 1974) (holding a violation of Fla.R.Crim.P. 3.410 harmless) is distinguishable in that the court there found no uncertainty as to what the jury was told.
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Crews v. State, 442 So. 2d 432 (Fla. 5th DCA 1983)…. State, 232 So. 2d 451 (Fla. 4th DCA 1970). . Walt Disney World Co. v. Althouse, 427 So. 2d 1135 (Fla. 5th DCA 1983); Ennis v. State, 300 So. 2d 325 (Fla. 1st DCA 1974); see Degeer v. State, 349 So. 2d 713 (Fla. 2d DCA 1977). . Caldwell v. State, 340 So. 2d 490 (Fla. 2d DCA 1976); Randolph v. State, 336 So. 2d 673 (Fla. 2d DCA 1976); Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960).…
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Rawleigh Flowers v. State, 348 So. 2d 602 (Fla. 4th DCA 1977)…the jurors were told. Under these circumstances we cannot conclude that the error was harmless. Accordingly, the judgment is hereby reversed, and the cause is remanded for a new trial. MAGER, C. J., and ALDERMAN, J., concur. . Caldwell v. State, 340 So. 2d 490 (Fla. 1st DCA 1976); Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970); Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960).…
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Davis v. State, 408 So. 2d 795 (Fla. 2d DCA 1982)…ror for the trial judge to deny or give a response to a jury request made during deliberations until trial counsel have been advised and given the opportunity to participate in discussion. Ivory v. State, 351 So. 2d 26 (Fla.1977); Caldwell v. State, 340 So. 2d 490 (Fla.2d DCA), cert. denied, 346 So. 2d 1247 (Fla.1977). The testimony below,' uncontradict-ed as to the jurors’ posing the question, will only support a finding that such a request was made. The testimony of counsel and the court reporter that they…
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
- Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960)
- Slinsky v. State, 232 So. 2d 451 (Fla. 4th DCA 1970)
- Ennis v. State, 300 So. 2d 325 (Fla. 1st DCA 1974)
- Randolph v. State, 336 So. 2d 673 (Fla. 2d DCA 1976)