Franklin v. State, AZ-194
| Decision Date | 15 July 1985 |
| Docket Number | No. AZ-194,AZ-194 |
| Citation | 10 Fla. L. Weekly 1714,472 So.2d 1303 |
| Parties | 10 Fla. L. Weekly 1714 Arthur O'Derrell FRANKLIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Gregory G. Costas, Asst. Atty. Gen., for appellee.
Appellant seeks review of convictions and sentences for the offenses of kidnapping, unarmed robbery, and multiple counts of sexual battery. Appellant was 17 years old when the offenses were committed and we find that in imposing adult sanctions the court erred by failing to provide a written statement indicating a consideration of the criteria specified in § 39.111(6), Florida Statutes. We therefore vacate the sentences appealed and remand the cause for resentencing.
Appellant was tried upon an information which asserted, pursuant to § 39.04(2)(e)4, Florida Statutes, that "the public interest requires that adult sanctions be considered or imposed." At the conclusion of the first day of trial the jury was permitted to separate for an overnight recess after being instructed by the court to avoid any exposure to discussion or information regarding the case. The jury reconvened the next day and, after closing argument of counsel and instructions from the court, retired for deliberation of the verdict. As evening approached the court expressed concern for the jury's comfort and suggested that if they were not close to reaching a verdict the jurors might "come back tomorrow." In response to inquiry from the court, appellant's counsel indicated a preference that the jury continue its deliberation. 1 The court then allowed the jury to choose between continuing its deliberation or adjourning for the evening. The jury chose to adjourn, and the court again cautioned the jury with explicit and extensive instructions to avoid any discussion or information regarding the case. The individual jurors were then allowed to separate for the evening.
Appellant asserts that the court erred by allowing the jurors to separate in the midst of deliberation. Fla.R.Crim.P. 3.370(b) provides that "jurors may separate for a definite time ... before retiring for consideration of their verdict." However, the Rule does not contemplate juror separation during deliberation, and several cases have recognized that in certain contexts such a procedure may warrant a new trial. See e.g., Livingston v. State, 458 So.2d 235 (Fla.1984); Raines v. State, 65 So.2d 558 (Fla.1953). These opinions indicate a concern for the fairness of the proceeding and the danger of improper influence.
Unlike Livingston, the present case does not involve an extended period of juror separation or a trial for a capital felony accompanied by substantial publicity. And unlike Raines, in the present case the jurors were explicitly cautioned regarding their obligation to avoid external influences. In addition, apart from the qualified preference...
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...less so once the jury has begun to deliberate.' ") (ellipsis in original). Although we agree with the result in Franklin v. State, 472 So.2d 1303 (Fla. 1st DCA 1985)--that is, there is no error where defendant did not object to separation and the jury was admonished before separating--to th......
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