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Trial court committed reversible error in criminal case by reading testimony back to jury without giving defense counsel notice or opportunity to participate. [Added 1/17/10] A convicted criminal Defendant filed a petition alleging ineffective assistance of appellate counsel. The Second DCA granted the petition and, under the circumstances, decided to reverse Defendant's conviction and remand for a new trial. During its deliberations the jury asked to have testimony of an alibi witness read back. The trial court complied. Subsequently the court also complied with another jury request for a readback of the testimony for 2 state witnesses. "Unfortunately, there is no indication in the trial transcript that defense counsel was notified, nor is there any indication that defense counsel or the prosecutor was present at either of the readbacks. Furthermore, the transcript does not establish that the trial court at any time during the deliberations informed counsel that it had read back the testimony." (Footnotes omitted.) Under Fla.R.Crim.P. 3.410, testimony may be read back "only after notice to the prosecuting attorney and to counsel for the defendant." There was no indication that the trial court complied with this rule. Additionally, "the [Florida] supreme court in Bradley [v. State, 513 So.2d 112 (Fla. 1987)], in response to the State's argument that defense counsel was in fact present during the trial court's consideration of the jury's question, held: ''Notice is not dispositive. The failure to respond in open court is alone sufficient to find error.'' Id. (quoting Curtis v. State, 480 So.2d 1277, 1278 n.2 (Fla. 1985)). As the supreme court has concluded, '[w]ithout this participation process, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial.' Colbert v. State, 569 So.2d 433, 435 (Fla. 1990). A rule 3.410 violation constitutes per se reversible error. Bradley, 513 So. 2d at 112-13." White v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D09-1495, 1/8/2010). |
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