Moore v. State, BH-201

• Decision Date: 10 March 1987
• Docket Number: No. BH-201,BH-201
• Parties: Carlos E. MOORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1311

504 So.2d 1311

Carlos E. MOORE, Appellant, v. STATE of Florida, Appellee.

No. BH-201.

District Court of Appeal of Florida,

First District.

March 10, 1987.

Rehearing Denied April 22, 1987.

Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Kurt L. Barch, Asst. Atty. Gen. for appellee.

WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence for the offense of robbery. We find that appellant has failed to demonstrate reversible error, and we therefore affirm the judgment and sentence appealed.

Appellant was convicted after a jury trial in 1973, and sentenced to a term of life imprisonment. In 1985 a Fla.R.Crim.P. 3.850 motion for post-conviction relief was filed, and this court granted appellant a belated appeal of his 1973 judgment of conviction and sentence. See Moore v. State, 485 So.2d 1368 (Fla. 1st DCA 1986). By this belated appeal appellant now challenges the propriety of the lower court's response to a jury communication during the 1973 trial.

After the jury retired to commence deliberations in appellant's trial, it submitted a request to the court to clarify a notation on the written verdict forms. The record of the proceedings indicates that the court responded to this request in appellant's absence. Appellant now contends that since the record does not affirmatively state that counsel was then present it should be presumed that the court's response was made in the absence of his attorney. However, we find no basis for such a presumption and we decline to predicate reversal upon mere speculation. ¹ The record does not substantiate appellant's contention, and an affidavit of trial counsel indicates no recollection of any error in the proceeding. In these circumstances appellant has failed to demonstrate any point of reversible error.

Accordingly, the judgment of conviction and sentence appealed is affirmed.

BOOTH, C.J., concurs.

ZEHMER, J., dissents with written opinion.

ZEHMER, Judge, dissenting.

The question on this appeal, as framed by counsel for appellant, is:

[Whether] the trial court erred in responding to a question from the jury after commencement of deliberations, without first consulting counsel for the parties and in the absence of appellant, [thereby] depriving appellant of a fair trial, due process of law, and the effective assistance of counsel, as guaranteed by the state and federal constitutions.

The record establishes without dispute that appellant was not present when the trial court communicated with the jury in response to its question. The state concedes that the record is absolutely silent as to whether the trial court notified counsel for defendant and the state prior to communicating with the jury and that, further, it is also silent as to whether or not defense counsel and the assistant state attorney were present during the communication with the jury. The state does not argue that such silence in the record requires us to decide this case on the basis that counsel was present because appellant failed to demonstrate otherwise, but, rather, that (1) the jury's question was not a type of request falling within rule 3.410, Florida Rules of Criminal Procedure, and (2) in any event, the communication to the jury was harmless error.

Counsel for appellant correctly points out that violation of the notice requirements of rule 3.410 is, per se, reversible error. E.g., Williams v. State, 488 So.2d 62 (Fla.1986); Ivory v. State, 351 So.2d 26 (Fla.1977). Counsel for appellant also correctly notes that rule 3.180(a)(5), Florida Rules of Criminal Procedure, requires that a defendant shall be present at all proceedings before the court when the jury is present and that, although a violation of this rule does not require reversal per se, it is to be tested by the harmless error rule, provided counsel for defendant was consulted and present during the defendant's absence. See, e.g., Meek v. State, 487 So.2d 1058 (Fla.1986); Garcia v. State, 492 So.2d 360 (Fla.1986); Amazon v. State, 487 So.2d 8 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986).

The majority opinion does not hold that the question by the jury and the trial court's response fall outside the scope of rule 3.410. In my view, the requirements of that rule were applicable in this case. Curtis v. State, 480 So.2d 1277 ...