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521 So. 2d 302

521 So.2d 302

13 Fla.L.Weekly 611

Banos v. State

District Court of Appeal of Florida · decided 1988-03-08

Relies on 95 So. 2d 594 - Russ v. State · 362 So. 2d 1017 - Nelson v. State · 423 So. 2d 416 - Meixelsperger v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1988-03-08

How this case has been cited

Cited by 3 later decisions — most recently December 2013

3 state decisions

101988199020002010decided

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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PER CURIAM.

¶1The defendant was charged by information with three counts of armed robbery, one count of armed kidnapping, one count of possession of a firearm while engaged in the commission of a felony and one count of possession of a firearm by a convicted felon. Pursuant to a motion by the defendant, the convicted felon firearm count was severed. When the jury retired to deliberate at the close of the trial on the remaining counts, they were permitted to take with them a copy of the information. One page of the document contained a reference to the severed count. The jurors inquired of the court during their deliberations whether they should have been given the page containing the reference to this count. Defense counsel stated a curative instruction would be insufficient to cure the taint, and moved for a mistrial, which the court denied. Pursuant to the jury’s verdict of guilty as charged on all five counts, the court adjudicated the defendant guilty and imposed sentence. The defendant’s motion for new trial, again raising the issue of undue influence upon the jury from the improper reference to the severed count in the information submitted to them, was denied.

¶2On appeal the defendant urges reversal of his conviction and sentences on the ground that the trial court erred in denying his motions for mistrial and for new trial after the jury inadvertently learned of the severed convicted felon charge, which could not properly have been introduced in evidence. We find merit in this contention and reverse.

¶3It is clearly apparent from the record in this case that the jurors, having noted the reference to the severed convicted felon count in the information submitted to them, were subjected to an extraneous influence in their deliberations, which we hold was fundamentally improper. The law is well settled that where jurors cpnsider matters not in evidence, to the prejudice of a defendant, a new trial is mandated. Russ v. State, 95 So.2d 594, 601 (Fla.1957); Meixelsperger v. State, 423 So.2d 416 (Fla. 2d DCA 1982); Nelson v. State, 362 So.2d 1017 (Fla. 3d DCA 1978). Accordingly, we reverse the conviction and sentences and remand for a new trial.

¶4Reversed and remanded for a new trial.

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