Smith v. State
| Decision Date | 13 April 1976 |
| Docket Number | No. Y--340,Y--340 |
| Parties | Sylvester P. SMITH and Richard Person, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellants.
Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee.
Appellants were charged with robbery and were tried on April 28, 1975. The court instructed the jury on the crime charged and the lesser included offenses of grand larceny and petit larceny. Appellants' request for instructions to the jury on the penalties for the foregoing offenses was refused. The jury retired and, without requesting any additional instructions, returned verdicts of guilty of grand larceny against both appellants. The jury was discharged without being polled (there was no request for polling) and appellants were adjudged guilty of grand larceny and given maximum sentences--five years in the state prison. The following day, April 29, the Lake City Reporter published an article relating that 'In a totally unexpected move,' the jury found appellants guilty 'only of grand larceny, despite testimony they held guns to the throats of the victims.' The article further related that the judge was 'all set to give (the appellants) life imprisonment if they were convicted of armed robbery,' the jury returned to 'shock the courtroom with the grand larceny conviction.'
On May 2 the state attorney filed a petition alleging that the jury erroneously believed that grand larceny was the maximum offense available under the charge and requested that a hearing be held to determine the validity of its allegations. He asked that the court either allow the jury to reconsider its verdict or grant a new trial. Over the objection of appellants, the trial judge held a hearing on the same day and took the testimony of the jurors. All six jurors testified that they had unanimously voted to convict appellants of Armed robbery, but that since there was no verdict form for Armed robbery (only a form for robbery), they decided that grand larceny was the highest offense they could bring in, so they returned the verdict of guilty of grand larceny; that they realized their mistake when they read or heard about the newspaper article.
The court granted the state's petition to set aside the order discharging the jury and directed the jury to reconsider its verdict. The jury then returned verdicts of guilty of robbery and appellants were sentenced to life imprisonment. Appellants' motion to vacate the judgments and sentences was denied and this appeal was taken.
Although it was within the trial court's discretion to grant or deny appellants' motion to charge the jury on the penalties for robbery and the lesser included offenses, had the court granted rather than denied such motion, it would probably have eliminated the jury's confusion and the jury's error would thus probably have been forestalled. Also, had the state requested that the jury be polled when it returned to the courtroom with the grand larceny verdict, the jury's error would probably have been forestalled....
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