Maldonado v. State, 92-2543

Decision Date18 February 1994
Docket NumberNo. 92-2543,92-2543
Citation634 So.2d 661
Parties19 Fla. L. Weekly D383 Miguel A. MALDONADO, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Andrea Black, Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca Roark Wall, Asst. Atty. Gen., Daytona Beach, for appellee.

DIAMANTIS, Judge.

Miguel Maldonado appeals his convictions and sentences imposed by the trial court after a jury found him guilty of two counts of robbery with a firearm. We conclude that one of the points on appeal raised by Maldonado has merit and, thus, we reverse and remand for a new trial.

During jury deliberations, the jury asked to hear the testimony of the three key state witnesses. The trial court then proposed to both parties' counsel that the court reporter be sent into the jury room to read the transcript. Both the prosecutor and Maldonado's attorney agreed, and both counsel agreed not to be present when the court reporter read the testimony to the jury. The trial court likewise was not present for the reading. Although Maldonado's attorney and the prosecutor agreed to this procedure, Maldonado did not because neither his attorney nor the trial court consulted him.

In Brown v. State, 538 So.2d 833 (Fla.1989), the jurors, during deliberations, requested transcripts of certain witnesses' testimony. The trial judge, who had left the courthouse, communicated with both parties' counsel by telephone. In addition to agreeing that it would not be necessary for the judge to return, the prosecutor and Brown's attorney agreed that the jury should be told they could not have the transcripts and would have to rely on their memories. Both counsel then entered the jury room and so informed the jury.

In reversing Brown's conviction, the Florida Supreme Court characterized "the presence of a judge during trial [as] a fundamental right." Brown, 538 So.2d at 835. The court penned these words which apply to the present case:

... [T]he presence of a judge during trial is a fundamental right which can be waived only in limited circumstances and then only by a fully informed and advised defendant, and not by counsel acting alone.

Brown now argues that no valid waiver occurred in this case because defense counsel consulted only with the prosecution, not with him and that Brown, himself, did not consent to the trial judge's absence. We agree that no valid waiver has been shown here. More importantly, however, we hold that the judge's presence cannot be waived when a jury wishes to communicate with the court during its deliberations. Free discourse is essential in such a situation but is thwarted by the judge's absence.... No one can say at this point that the judge's absence did not have a detrimental effect on the jury's deliberations. The possibility of prejudice is so great in this situation that it cannot be tolerated. We hold, therefore, that communications from the jury must be received by the trial judge in person and that the absence of the judge when a communication is received and answered is reversible error. We disagree with the state that Brown's failure to object precludes our consideration of the judge's absence.

Id. at 835-36 (footnote omitted) (emphasis added).

We also have considered whether the type of error addressed in Brown is susceptible to a harmless error test. We agree with the court's conclusion in Young v. State, 591 So.2d 651 (Fla. 1st DCA 1991), 1 that our supreme court in Brown "intended to establish a rule requiring automatic reversal whenever a communication received from a jury during deliberation is answered in the absence of the trial judge; and that, therefore, a harmless error analysis is inappropriate." Young, 591 So.2d at 652.

Even if we were to apply a harmless error test, we conclude that the state has not met its burden to...

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7 cases
  • Harbaugh v. State
    • United States
    • Florida District Court of Appeals
    • April 15, 1998
    ...by an impartial jury under the state and federal constitutions. Id. at 834-35. The fifth district applied Brown in Maldonado v. State, 634 So.2d 661 (Fla. 5th DCA 1994). There, the jury requested a readback of three witnesses' testimony. Both attorneys and the trial judge agreed to send the......
  • Ferrer v. Manning
    • United States
    • Florida District Court of Appeals
    • November 6, 1996
    ...(Fla.1995); Wallace v. State, 650 So.2d 95 (Fla. 5th DCA 1995); Glee v. State, 639 So.2d 1092 (Fla. 4th DCA 1994); Maldonado v. State, 634 So.2d 661 (Fla. 5th DCA 1994). The governing standard to be applied in evaluating claims of ineffective assistance of appellate counsel is as A person c......
  • Bryant v. State, 81862
    • United States
    • Florida Supreme Court
    • April 13, 1995
    ...trial court's absence during the readback of testimony without a valid waiver constitutes reversible error. McCollum; Maldonado v. State, 634 So.2d 661 (Fla. 5th DCA 1994). Even though the reversal of Bryant's convictions renders the penalty phase issues moot, we find it necessary to addres......
  • Glee v. State
    • United States
    • Florida District Court of Appeals
    • July 20, 1994
    ...circumstances, but not through counsel acting alone. Id. See also Jackson v. State, 636 So.2d 99 (Fla. 3d DCA 1994); Maldonado v. State, 634 So.2d 661 (Fla. 5th DCA 1994); and Young v. State, 591 So.2d 651 (Fla. 1st DCA 1991). We agree with our sister court that this issue is not susceptibl......
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