Mills v. State, 91-0905

CourtCourt of Appeal of Florida (US)
Citation596 So.2d 1148
Docket NumberNo. 91-0905,91-0905
Parties17 Fla. L. Weekly D798 Charles MILLS, Appellant, v. STATE of Florida, Appellee.
Decision Date25 March 1992

Page 1148

596 So.2d 1148
17 Fla. L. Weekly D798
Charles MILLS, Appellant,
STATE of Florida, Appellee.
No. 91-0905.
District Court of Appeal of Florida,
Fourth District.
March 25, 1992.
Rehearing and Clarification Denied May 11, 1992.

Page 1149

Kayo E. Morgan, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.


Charles Mills appeals his armed trafficking in cocaine and conspiracy to traffic in cocaine convictions and sentences. We affirm as to all issues. We write, however, to state that the trial court committed harmless error when it responded to a question from the jury without first giving defense counsel the opportunity to be heard.

During jury deliberations, the jury sent a note to the trial judge. The trial judge notified both counsel that the jury had a question. In the defendant's presence, defense counsel asked what the question was so that it could be discussed. The trial judge refused to tell defense counsel the question, and told him there was no need to talk about it. The jury was then brought into the courtroom. The trial judge said to the jury, "I have your question, 'Judge Coker, could you please clarify or provide a copy of the law on armed trafficking.' " The trial judge told the jury that he could not do that, but would reread to them the instruction on trafficking. The trial court then reread the instructions on armed trafficking that he had earlier given the jury. The trial judge then asked, "Does that answer your question?" The jury said, "yes" and then retired to continue their deliberations. After the jury left the courtroom, the trial judge and defense counsel engaged in the following colloquy:

MR. MORGAN: Judge, show my objection. We didn't get a chance to discuss that.

THE COURT: Well, what's your objection?

MR. MORGAN: I'd like to have entrapment read to them. It's not an offense to traffic if he was entrapped.

THE COURT: I responded to their question exactly as they requested that I respond and your objection is noted.

Rule 3.410, Florida Rules of Criminal Procedure (1991) reads:

After the jurors have retired to consider their verdict, if they request additional instructions ... [s]uch instructions shall be given ... only after notice to the prosecuting attorney and to counsel for the defendant. [Emphasis added.]

We acknowledge that defense counsel's right to be present at re-instruction of the jury includes the right to participate, to place objections on the record, and to make full argument as to the reasons the jury's request should or should not be honored. Ivory v. State, 351 So.2d 26, 28 (Fla.1977). However, although the trial judge violated the rule when he failed to give defense counsel the opportunity to be heard, we find such error to be harmless.

Initially, we distinguish those cases that hold per se...

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4 cases
  • Mills v. State
    • United States
    • Florida Supreme Court
    • 17 de junho de 1993
    ...Sr. Asst. Atty., Bureau Chief, and Georgina Jimenez-Orosa, West Palm Beach, for respondent. PER CURIAM. We review Mills v. State, 596 So.2d 1148 (Fla. 4th DCA 1992), because of certified conflict with Cherry v. State, 572 So.2d 521 (Fla. 1st DCA 1990). We have jurisdiction under article V, ......
  • Gayman v. State
    • United States
    • Florida Supreme Court
    • 11 de fevereiro de 1993
  • Smith v. State, 91-04250
    • United States
    • Florida District Court of Appeals
    • 2 de dezembro de 1992
  • Mills v. State
    • United States
    • Florida Supreme Court
    • 30 de setembro de 1992

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