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340 So. 2d 490

Docket Nos. 75-1556, 75-1557, and 75-1558.

Caldwell v. State

Kenneth CALDWELL, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided December 1, 1976.

Rehearing Denied January 11, 1977.

District Court of Appeal of Florida · decided 1976-12-01

Relies on 120 So. 2d 195 - Holzapfel v. State · 232 So. 2d 451 - Slinsky v. State · 300 So. 2d 325 - Ennis v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1976-12-01

How this case has been cited

Cited by 6 later decisions — most recently July 2004

6 state decisions

201976198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Jack O. Johnson, Public Defender, Bartow, Ellen Condon, Asst. Public Defender, Tampa, for appellant.

¶2Robert L. Shevin, Atty. Gen., Tallahassee, Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

¶3BOARDMAN, Judge.

¶4Appellant appeals the judgments and sentences for involuntary sexual battery (Case No. 75-1558), robbery (Case No. 75-1557), and breaking and entering while armed with intent to commit a felony (Case No. 75-1556). We have carefully considered the several points raised by appellant and find that only one is meritorious.

¶5The jury found appellant guilty as charged, and he was sentenced to three consecutive 100-year terms. Prior to pronouncing sentence the judge said

while ya'll were at lunch the jury sent out a question as to the difference between sexual battery and involuntary sexual battery, and I just sent word back that there was no difference. Apparently the terms are interplayed in the verdicts.

¶6The judge's statement is the only evidence in the record of this incident. We are unable *491 to determine what additional instructions the jury actually received. The statement indicates that the judge may not have instructed the jury himself but relayed the instructions to the jury through a third party. Since it is uncertain what the jurors were told we cannot view this procedural violation as being harmless error.[1] Inquiries from the jury must be answered in open court after notice to both the defendant's counsel and the prosecution. Fla.R.Crim.P. 3.410. No one is permitted to communicate with the jurors without permission from the court given in open court in the presence of the defendant or his counsel. Section 918.07, Florida Statutes.

¶7Therefore we reverse the judgment on involuntary sexual battery and remand for a new trial. Appellant has not alleged that the court's manner of responding to a question concerning the involuntary sexual battery charge in any way tainted the jury verdict on the other two counts, and we are unable to discern from our independent review of the record any prejudice to the other counts. Accordingly we affirm the judgments and sentences in Case Nos. 75-1556 and 75-1557.

¶8AFFIRMED in part, and REVERSED and REMANDED in part.

¶9McNULTY, C.J., and SCHEB, J., concur.

NOTES

¶10[1] Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976); Slinsky v. State, 232 So.2d 451 (Fla. 4th DCA 1970); Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960). The decision in Ennis v. State, 300 So.2d 325 (Fla. 1st DCA 1974) (holding a violation of Fla.R.Crim.P. 3.410 harmless) is distinguishable in that the court there found no uncertainty as to what the jury was told.

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