Rodas v. State, No. 4D07-26.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | Gross |
| Citation | 967 So.2d 444 |
| Parties | Valentin RODAS, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 07 November 2007 |
| Docket Number | No. 4D07-26. |
v.
STATE of Florida, Appellee.
[967 So.2d 445]
Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
We write to address one issue—whether fundamental error occurred when the trial judge allowed a bailiff to orally transmit the court's instruction on the law from the court to the deliberating jury. We conclude that the error was not fundamental. Because the defendant did not timely object in the trial court, before the error occurred, he did not preserve the error for appeal.
Valentin Rodas was charged with interfering with the custody of a parent or guardian, in violation of section 787.03(1), Florida Statutes (2005). The evidence at trial was that Rodas took a 13 year old girl with him to New York, against her mother's wishes. Rodas testified that the mother approved of his relationship with the girl and gave him permission to be her boyfriend, without disclosing the girl's age.
During deliberations, the jury asked two questions. The first question was "What is the meaning of recklessly took?" The trial judge reconvened court outside the presence of the jury and conferred with the state and defense to determine an appropriate answer to the question. After the jury returned to the courtroom, the judge answered the question. There was no objection. A juror had another question and the judge told him to "put it in writing." The jury then left the courtroom. The bailiff told the judge that the jury was "not sure if there will be another question."
The record then indicates that there was a "short recess, after which, proceedings resume[d]." At this point, the record becomes murky. Apparently there was a
second written question: "Does definition of `took' require physical force?" The written question was later marked as court Exhibit 3. The transcript then reads:
The Court: Didn't I tell you (Indiscernible)
Bailiff: They've got the instructions.
[Prosecutor]: I would ask to tell him that—
The Court: Tell them just to read the instructions. They have the instructions. Read them and consider them and (Indiscernible) sanity.
Bailiff: I told them to read the instruction as a whole and (Indiscernible)
[Prosecutor]: That's perfect.
The Court: Okay. Counsel, one second. Okay. (Indiscernible).
Clyde. No. Clyde, Clyde, come here[.] Come here. Just give them that and tell them it's the answer. All right. We'll be in recess.
What appears to have happened is that at the direction of the judge, the bailiff responded to the question by telling the jury something about reading "the instructions as a whole." The record does not indicate how much time transpired between the judge's direction to the bailiff ("Tell them just to read the instructions.") and the bailiff's report back to the court. The prosecutor thought the bailiff handled the matter perfectly; the defense was silent.1 It appears that the judge had second thoughts, so he handwrote a response to the question:...
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Johnson v. State , No. SC09–966.
...se reversible error and harmful error analysis apply only if the issue is properly preserved for appellate review. See Rodas v. State, 967 So.2d 444, 446–47 (Fla. 4th DCA 2007) (“There is a difference between ‘per se reversible error’ and ‘fundamental error.’ The general rule is that a reve......
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Johnson v. State Of Fla., No. SC09-966
...se reversible error and harmful error analysis apply only if the issue is properly preserved for appellate review. See Rodas v. State, 967 So. 2d 444, 446-47 (Fla. 4th DCA 2007) ("There is a difference between 'per se reversible error' and 'fundamental error.' The general rule is that a rev......
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Brown v. State, No. 4D07-1464.
...argues he received ineffective assistance of counsel because defense counsel failed to advise him of a possible defense to the charge of 967 So.2d 444 conspiracy to commit murder. Brown was a co-defendant in this case with two other individuals, Lopez and Castro. Castro wanted Lopez and Bro......
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Adams v. State, No. 2D12–2306.
...agreed to the trial court's proposed response and thereby failed to preserve any possible error for appellate review. See Rodas v. State, 967 So.2d 444, 446 (Fla. 4th DCA 2007) (“The general rule is that a reversal in a criminal case must be based on a prejudicial error that was preserved b......
-
Johnson v. State , No. SC09–966.
...se reversible error and harmful error analysis apply only if the issue is properly preserved for appellate review. See Rodas v. State, 967 So.2d 444, 446–47 (Fla. 4th DCA 2007) (“There is a difference between ‘per se reversible error’ and ‘fundamental error.’ The general rule is that a reve......
-
Johnson v. State Of Fla., No. SC09-966
...se reversible error and harmful error analysis apply only if the issue is properly preserved for appellate review. See Rodas v. State, 967 So. 2d 444, 446-47 (Fla. 4th DCA 2007) ("There is a difference between 'per se reversible error' and 'fundamental error.' The general rule is that a rev......
-
Brown v. State, No. 4D07-1464.
...argues he received ineffective assistance of counsel because defense counsel failed to advise him of a possible defense to the charge of 967 So.2d 444 conspiracy to commit murder. Brown was a co-defendant in this case with two other individuals, Lopez and Castro. Castro wanted Lopez and Bro......
-
Adams v. State, No. 2D12–2306.
...agreed to the trial court's proposed response and thereby failed to preserve any possible error for appellate review. See Rodas v. State, 967 So.2d 444, 446 (Fla. 4th DCA 2007) (“The general rule is that a reversal in a criminal case must be based on a prejudicial error that was preserved b......