Jenkins v. State

688 So. 2d 422, 1997 Fla. App. LEXIS 1696, 1997 WL 78428

Opinion

STONE, Judge.

We reverse Appellant’s conviction and remand for a new trial.

While the trial court was in the process of responding to a jury question raised during deliberations, a juror asked a new question, the substance of which went well beyond the initial question. Without consulting counsel, the court instructed the jury in response to the additional inquiry. Although the court afforded counsel an opportunity to subsequently request an addition to the instruction and to object to the instruction as given, such belated consultation with counsel is insufficient to overcome the taint of the court’s communicating with the jury without affording a party a meaningful opportunity to have input on the court’s framing of the instruction. See Mills v. State, 620 So.2d 1006 (Fla.1993); Mohammed v. State, 662 So.2d 410, 411 (Fla. 4th DCA 1995); Mitchell v. State, 682 So.2d 604 (Fla. 1st DCA 1996). As such error is per se reversible, we give no consideration to whether it may be harmless error.

WARNER and STEVENSON, JJ., concur.