Sailor v. StateSailor v. State
- Reporters:
- ,
- Before:
- Allen, Miner, Davis (per curiam)
The appellant challenges a conviction and sentence entered after a jury trial. We conclude that he has shown no basis for reversal of the conviction, but that the sentence must be vacated and the case remanded for resentencing in accordance with Heggs v. State, 759 So.2d 620 (Fla. 2000).
Among other assertions, the appellant contends that the trial court erred by responding to a jury inquiry without notifying the parties. Characterizing this as a violation of
The appellant suggests that he could not have objected to the court‘s response to the jury inquiry before it happened because he was then unaware of this communication. But the contemporaneous objection requirement in Thomas does not necessitate such an advance objection, and instead may be satisfied if the objection is promptly brought to the court‘s attention when the communication becomes known. The appellant did not do this but rather chose to allow the jury to continue its deliberation, and the appellant awaited the verdict before complaining of the communication which is now urged as error on appeal. This approach, whereby a party waits to see if the jury renders a favorable verdict while the party withholds a claim of error in the process, is the type of gamesmanship which the contemporaneous objection requirement is designed to prevent. And while Thomas also involved an affirmative waiver of the asserted error therein, that additional factor does not negate the necessity of a proper contemporaneous objection.
Thomas also involved a situation where the trial court expressly invited the parties to present their objections before the jury returned its verdict, and the second district noted this as a distinguishing factor in Greenfield v. State, 739 So.2d 1197 (Fla. 2d DCA 1999). As in the present case, the Greenfield jury asked for a dictionary, but in Greenfield the trial court granted the request and sent a dictionary into the jury room, whereas here the court denied the request and directed the jury to use its “common sense” and “collective reasoning.” The present case does not involve the greater concern in Greenfield as to a violation of
The appellant‘s sentence was imposed under the 1995 sentencing guidelines which were held to be unconstitutional in Heggs v. State. The appellant‘s offense occurred during the window period for relief under Heggs, and as indicated in Trapp v. State, 760 So.2d 924 (Fla. 2000), and the appellant raised this issue below by a
The appellant‘s conviction is affirmed, but the sentence is vacated and the case remanded for resentencing.
ALLEN, C.J., MINER and DAVIS, JJ., CONCUR.