Thomas v. State, 96-4639

• Decision Date: 26 September 1997
• Docket Number: No. 96-4639,96-4639
• Citation: 700 So.2d 734
• Parties: 22 Fla. L. Weekly D2284 Shawn THOMAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 734

700 So.2d 734

22 Fla. L. Weekly D2284

Shawn THOMAS, Appellant, v. STATE of Florida, Appellee.

No. 96-4639.

District Court of Appeal of Florida, First District.

Sept. 26, 1997.

Rehearing Denied Oct. 24, 1997.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant contends that his convictions should be reversed because the trial judge committed error when he sent an instruction to the jury during its deliberations without first notifying the prosecutor and defense counsel and giving them an opportunity to discuss the proposed instruction. See Fla. R.Crim. Pro. 3.410. 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. We accordingly affirm the convictions.

MINER, ALLEN and PADOVANO, JJ., concur.