Thomas v. State, No. 91719.
| Court | United States State Supreme Court of Florida |
| Writing for the Court | SHAW, J. |
| Citation | 730 So.2d 667 |
| Parties | Shawn THOMAS, Petitioner, v. STATE of Florida, Respondent. |
| Decision Date | 04 September 1998 |
| Docket Number | No. 91719. |
730 So.2d 667
Shawn THOMAS, Petitioner,v.
STATE of Florida, Respondent
No. 91719.
Supreme Court of Florida.
September 4, 1998.
Rehearing Denied November 17, 1998.
Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Petitioner.
Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Respondent.
SHAW, J.
We have for review Thomas v. State, 700 So.2d 734 (Fla. 1st DCA 1997), based on conflict with Ivory v. State, 351 So.2d 26 (Fla.1977). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
Shawn Thomas was tried for the sale and possession of cocaine. The following colloquy occurred between the court and counsel shortly before the jury returned a guilty verdict:
THE COURT: Before the jury returns, let me advise you that shortly after the jury went back in to the jury room, the bailiff brought to me the State's Exhibit 1 and 2 and advised that the jury had a question with regard to the date on the lab report and on the Exhibit 1 [containing the purported cocaine].
I advised him that—he pointed out to me that the date on Exhibit 1 was 3-1-95 and the lab report was '96. I advised him to advise the jury that they should consider that as part of the evidence and continue to deliberate on their verdict.
So, I did not feel that any other instruction was necessary because there was nothing said by me to them other than to continue to deliberate.
730 So.2d 668Do either one of you have an objection to that process?
MR. EVANS [STATE]: No, Your Honor.
MR. HOLTON [DEFENSE COUSEL]: No, sir. I take it you didn't communicate directly with the jury, just with the bailiff?
THE COURT: Through the bailiff, right.
Bring the jury back.
Thomas argued on appeal that the trial court violated Florida Rule of Criminal Procedure Rule 3.4101 and that such a violation was per se reversible error pursuant to Ivory v. State, 351 So.2d 26 (Fla.1977), wherein this Court stated:
We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant's counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury's request. This right to participate includes the right to place objections on the record as well as the right to make full argument as to the reasons the jury's request should or should not be honored.
Ivory, 351 So.2d at 28. We reaffirmed the per se reversible error standard in Mills v. State, 620 So.2d 1006 (Fla.1993),2 explaining that
"[t]he particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record."
Id. at 1008 (quoting Colbert, 569 So.2d at 435). We noted that an opportunity to contribute after the instruction has been given is insufficient because "[i]t is unrealistic to believe a judge would be equally willing to encompass defense counsel's suggestions in both situations [before and after the fact], and it is impossible to tell how the judge would have reacted to counsel's suggestions had they been made before the question was answered." Mills, 620 So.2d at 1008.
In the present case, the First District Court of Appeal affirmed the convictions, reasoning thusly:
Although such a violation of rule 3.410 would ordinarily constitute per se reversible error under Ivory v. State, 351 So.2d 26 (Fla.1977), here we conclude that the appellant's trial counsel affirmatively waived the issue by communicating to the trial judge his acceptance of the procedure employed when later given an opportunity to object.
Thomas, 700 So.2d at 734-35. We agree. The per se reversible error rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection at trial.3 Where counsel communicates to the trial judge his acceptance of the procedure employed, the issue will be considered waived.4
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Anderson v. State, No. 1D11–0707.
...or the defendant ‘opens the door’ to the error, the appellate court will not consider the error a basis for reversal.”); Thomas v. State, 730 So.2d 667, 668–69 (Fla.1998) ( “Where counsel communicates to the trial judge his acceptance of the procedure employed, the issue will be considered ......
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Lebron v. State, No. SC93955.
...given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant"); but cf. Thomas v. State, 730 So.2d 667 (Fla.1998) (holding that a rule 3.410 violation was not reversible error where defense counsel indicated acceptance of the procedure employed......
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Hendricks v. State Of Fla., No. 1D09-357.
...failure to respond in open court is alone sufficient to find error.’ Bradley, 513 So.2d at 114 (citations omitted). In Thomas v. State, 730 So.2d 667, 668-69 (Fla.1998), the supreme court clarified its position regarding the requirements of Rule 3.410. There, the bailiff had informed the tr......
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Hendricks v. State, Case No. 1D09-357 (Fla. App. 3/31/2010), Case No. 1D09-357.
...failure to respond in open court is alone sufficient to find error.' Bradley, 513 So. 2d at 114 (citations omitted). In Thomas v. State, 730 So. 2d 667, 668-69 (Fla. 1998), the supreme court clarified its position regarding the requirements of Rule 3.410. There, the bailiff had informed the......