JOHN N. FERBER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ferber was charged with larceny by a public servant under Florida law. After the jury failed to return verdicts on two counts, the trial judge instructed the jury to pick between guilty verdicts on those counts, which the appellate court found to be improper judicial direction that violated due process.
The court held that the judge's statement was tantamount to directing the jury to return verdicts of guilt on the two counts, constituting fundamental error that violated due process. The judgment was reversed and the case remanded for a new trial.
[1] A trial judge's statement to a jury, even if unintended, may constitute fundamental error if it can be reasonably interpreted as an instruction to return verdicts of guil…
[2] Jurors give great weight to the words of a trial judge, making it imperative that judges avoid statements that could be interpreted as indicating their opinion of the cas…
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Join FLexlaw to unlock all legal intelligence“In the courtroom setting the words of the trial judge are properly given great weight by the jurors. It is particularly important for the judge not to say anything which might be interpreted as being an indication of the court's opinion of the case.”
Establishes the foundational principle that judicial statements carry special weight with jurors and judges must avoid comments suggesting their opinion.
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Join FLexlaw to unlock all legal intelligenceAppellant Ferber was charged with six counts of larceny by a public servant. A judgment of acquittal was entered on one count, the jury returned not g…
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GRIMES, Acting Chief Judge.
Appellant was charged with six counts of larceny by a public servant in violation of Section 812.021, Florida Statutes (1975). A judgment of acquittal was entered on one count and the jury returned not guilty verdicts on three others. The jury did not initially return a verdict of any kind with respect to Counts II and IV. Consequently, the court made the following statement to the jury:
“Ladies and Gentlemen you have been given an extremely difficult legal task, and you have done beautifully with it; however, with Count Two, which is the Sony color TV, we have a guilty plea on two charges. You must pick one of these charges. It is either larceny by a public servant or attempted larceny, and with Count Four, you have guilty of larceny by a public servant and guilty of petty larceny. You have to pick one of those. So, I am going to have you retire to the Jury room to pick out one of these two verdicts for Count Two, and one of these verdicts for Count Four.”
The jury then found the appellant guilty as charged on Count II and guilty of the lesser included offense of petit larceny on Count IV.
The appellant argues that the quoted statement was tantamount to an instruction directing the jury to return verdicts of guilt on the remaining two counts. Recognizing that no objection was made, he argues that the error was of such magnitude as to constitute fundamental error. We are compelled to agree.
In the courtroom setting the words of the trial judge are properly given great weight by the jurors. It is particularly important for the judge not to say anything which might be interpreted as being an indication of the court’s opinion of the case. Mathis v. State, 45 Fla. 46, 34 So. 287 (1903).
Assuming the foregoing comment is accurately transcribed, and no one has suggested to the contrary, we are confident that the court did not mean to say what was actually said. No doubt the court intended to advise the jury to continue its deliberations so as to try to reach a verdict on the two counts on which no verdicts had yet been rendered. However, the fact remains that the jurors could have reasonably believed that they were being instructed to return verdicts of guilt on Counts II and IV. Therefore, we cannot say that this appellant has been afforded due process, and in the interest of justice we find it necessary to set aside the judgment and remand for a new trial.
We also have serious doubts about the state’s position that it need not allege and prove the value of the public property stolen in order to seek a felony conviction for larceny by a public servant, but in view of our disposition of this appeal, we need not reach the question at this time.
REVERSED.
SCHEB and DANAHY, JJ., concur.
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Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)…DCA 1974); Cleveland v. State, 287 So. 2d 347 (Fla. 3d DCA 1973). Other cases have granted new trials “in the interests of justice” without explicitly citing the rule. See, e. g., Dukes v. State, 356 So. 2d 873 (Fla. 4th DCA 1978); Ferber v. State, 353 So. 2d 1256 (Fla. 2d DCA 1978); McClain v. State, 353 So. 2d 1215 (Fla. 3d DCA 1977).…
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Cooper v. State, 376 So. 2d 477 (Fla. 1st DCA 1979)…this appeal contends that the court improperly commented on an evidentiary question which was pertinent to the defense. We agree. Lee v. State, 324 So. 2d 694 (Fla. 1st DCA 1976); Tanner v. State, 197 So. 2d 842 (Fla. 1st DCA 1967); Ferber v. State, 353 So. 2d 1256 (Fla. 2d DCA 1978). There was no error in admitting the testimony of Joy Adams. There was no objection to the business records offered through the witness Hutchinson on the ground that the predicate required by Section 92.36, Florida Statutes (1977)…
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Ferber v. State, 380 So. 2d 1063 (Fla. 2d DCA 1980)…l was taken before March 1, 1978. Therefore, we deny appellee’s motion to dismiss. On the merits it appears that by virtue of an appeal taken by the appellant, this court reversed the judgments of guilt and sentences entered below. Ferber v. State, 353 So. 2d 1256 (Fla.2d DCA 1978). Therefore, pursuant to the provisions of Section 939.15, Florida Statutes (1977), which specifically authorize the recovery of costs where there is a reversal of a judgment, we hold that the trial court erred in denying appellant…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mathis v. State, 45 Fla. 46 (Fla. 1903)