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541 So. 2d 171

Docket No. 88-1138.

Simmons v. State

Avery SIMMONS, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida · decided 1989-04-12

Cited by 6 later decisions — most recently December 1999

6 state decisions

Key passage — most relied on by later courts

“but if any instruction is taken all the instructions shall be taken.”

quoted by 3 later decisions, including 571 So. 2d 553 - Zarattini v. State, 559 So. 2d 1199 - Turco v. Leon

“The appellant was convicted of possession of cocaine. The drugs were found in a search of his room. [1] During deliberations the jury requested an instruction, for the second time, on the definition of constructive possession. The trial court, over a defense objection, decided to provide the instruction in writing.”

quoted by 1 later decision, including 571 So. 2d 553 - Zarattini v. State

Relies on Rodriguez v. New York · 110 So. 2d 654 - Williams v. State · Mize v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1989-04-12

View the full empirical analysis of this case →

¶1Richard L. Jorandby, Public Defender, and Carol Bickerstaff, Asst. Public Defender, West Palm Beach, for appellant.

¶2Robert A. Butterworth, Atty. Gen., Tallahassee, and Alfonso M. Saldana, Asst. Atty. Gen., West Palm Beach, for appellee.

¶3STONE, Judge.

¶4The appellant was convicted of possession of cocaine. The drugs were found in a search of his room.

¶5During deliberations the jury requested an instruction, for the second time, on the definition of constructive possession. The trial court, over a defense objection, decided to provide the instruction in writing.

¶6Florida Rule of Criminal Procedure 3.400(c) provides:

Rule 3.400. Materials to the Jury Room
The court may permit the jury, upon retiring for deliberation, to take to the jury room:
... .
(c) any instructions given; but if any instruction is taken all the instructions shall be taken.

¶7The reinstruction given would not have been an abuse of discretion if given orally, as it was otherwise complete. See Henry v. State,359 So.2d 864 (Fla. 1978); Lowe v. State,500 So.2d 578 (Fla. 4th DCA 1986). However, the rule with respect to written instructions has been held to require literal compliance. See Chappell v. State,423 So.2d 984 (Fla. 3d DCA 1982); Payne v. State,395 So.2d 284 (Fla. 3d DCA 1981); Morgan v. State,377 So.2d 212 (Fla. 3d DCA 1979), cert. denied,389 So.2d 1115 (Fla. 1980). See also Faulk v. State,296 So.2d 614 (Fla. 1st DCA 1974). We see no reason to adopt a different interpretation of the rule, and conclude that it was reversible error to furnish the jury with a portion of the instructions in writing.

¶8Additionally, we note, for the benefit of the court on remand, that it was error to allow testimony regarding a marijuana cigarette found in the room. Cf. Williams v. State,110 So.2d 654 (Fla.), cert. denied,361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Richardson v. State,528 So.2d 981 (Fla. 1st DCA 1988). It was also error to give a principals instruction where the only charge against the defendant was the (constructive) possession of the drugs found in the room based on the *172 defendant's individual occupancy and control. We find no error in the denial of appellant's motion for judgment of acquittal.

¶9Therefore, the judgment and sentence are reversed and we remand for a new trial.

¶10WARNER and POLEN, JJ., concur.

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