Matire v. State
| Decision Date | 09 February 1970 |
| Docket Number | No. 2130,2130 |
| Parties | Louis MATIRE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Leroy H. Moe and Steadman S. Stahl, Jr., Special Asst. Public Defenders, Hollywood, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
The appellant was convicted of first degree murder with a recommendation of mercy. From this conviction he appeals, his principal contention being that the trial judge committed error by failing to make available to the jury for its use in its deliberations the written instructions orally presented to them in open court. Under the facts and circumstances of this cause we find no reversible error and affirm.
The appellant contends that the provisions of Section 918.10(2), Florida Statutes, F.S.A., make it mandatory for the trial court to have the written instructions in capital cases taken by the jury to the jury room for its use in its deliberations. F.S. Section 918.10(2), F.S.A., provides as follows:
The purpose of this statute and its predecessors is to establish a procedure which insures that instructions in capital cases are as correct as possible by having them reduced to writing, and thereby requiring their prior preparation before presentation to the jury. Duggan v. State, 1861, 9 Fla. 516; Long v. State, 1866--1867, 11 Fla. 295; Holton v. State, 1849, 2 Fla. 476; Dixon v. State, 1869--1870--1871, 13 Fla. 636; Morrison v. State, 1900, 42 Fla. 149, 28 So. 97; and Cruce v. State, 1922, 84 Fla. 191, 93 So. 134. It also provides an unquestioned verbatim record of the charge to the jury.
Section 918.10(2), as now written requires charges in capital cases to be in writing, but the statute does not say the court must allow the written charges to be taken in their written form by the jury to the jury room for its use during its deliberations.
Criminal Rule 1.400, 33 F.S.A., superseded Section 919.04, Florida Statutes, effective January 1, 1968. It contains the identical provisions with respect to jury instructions as Section 919.04. Rule 1.400 provides:
'Upon retiring for deliberation the jurors may, if the court permits, take or later have sent to them:
'* * *
'(b) Any written instructions given; but if any such instruction is taken or sent all the instruction shall be taken or sent. * * *'
This rule makes it clear that it is in the sound discretion of the trial court to determine whether written instructions should be carried in their written form by the jury to the jury room for use during its deliberations. Brown v. State, 1943, 152 Fla. 508, 12 So.2d 292. This court has considered Coggins v. State, Fla.App.1958, 101 So.2d 400; and Kimmons v. State, Fla.App.1965, 178 So.2d 608, and said decisions are not in conflict herewith.
The defendant-appellant, accepting the construction that the trial court had the discretionary power, contends there was a special necessity in the instant case to send the writtens instructions to the jury room and the trial court's failure to do so was an abuse of its discretion. The defendant-appellant had pled not guilty by reason of insanity and it is contended that the instructions concerning mental competency were sufficiently complicated to require the jury to have them during its deliberation.
A trial judge's judicial discretion is not an unregulated power. Judicial discretion is a discretion guarded by the legal and moral conventions that mold the acceptable concept of right and justice. Albert v. Miami Transit Co., 1944, 154 Fla. 186, 17 So.2d 89. Justice Cardozo stated the principles that a trial judge must follow in exercising judicial discretion in 'The Nature of the Judicial Process,' Yale University Press 1921, where he stated:
In Carolina Portland Cement Co. v. Baumgartner, 1930, 99 Fla. 987, 128 So. 241, 247, our Supreme Court said:
"Judicial discretion' does not imply that a court may act, or fail to act, according to the mere whim or caprice of the presiding judge, but it means a discretion exercised within the limits of the applicable principles of law and equity, and the exercise of which, if clearly arbitrary, unreasonable, or unjust, when tested in the light of such principles, amounting to an abuse of such discretion, may be set aside on appeal.'
See also Ellard v. Godwin, Fla.1955, 77 So.2d 617, 619; McWhorter v. McWhorter, Fla.App.1960, 122 So.2d 504.
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