Summary
holding that there is no basis for a new trial where a juror states his disagreement with the verdict during polling
Summary of this case from Price v. Sec'y, Dep't of Corr.Opinion
No. 88-187.
April 4, 1989.
Appeal from the Circuit Court for Dade County, Phillip W. Knight, J.
Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Giselle D. Lylen, Asst. Atty. Gen., for appellee.
Before BARKDULL, HUBBART and COPE, JJ.
Bouie went to trial on an information charging him with armed robbery, and unlawful possession or display of a firearm in the commission of the robbery. During a jury trial, and following the presentation of the evidence the jury retired to consider the verdict. The jury returned verdicts of guilty as to both counts. When the jury was polled, juror Swinton stated disagreement with the verdicts so the court retired the jury again. Later the jury returned the same verdict. The trial court questioned if Swinton had been under duress in reaching his answer. He responded negatively. Defense counsel requested that further inquiry be made in the matter, but the court denied the request. Defense made motions for mistrial which were denied. Bouie was adjudicated guilty and he was sentenced on each count with the sentences to run concurrently.
As to the denial of mistrial, we find no error. Whitney v. State, 132 So.2d 599 (Fla. 1961); Rule 3.450 Florida Rules of Criminal Procedure.
As to the second point we find it was error to sentence for the possession of a firearm in view of the decisions reported in Hall v. State, 517 So.2d 678 (Fla. 1988); Sarduy v. State, 540 So.2d 203 (Fla. 3d DCA 1989); Payne v. State, 538 So.2d 1302 (Fla. 1st DCA 1989); Heath v. State, 532 So.2d 9 (Fla. 1st DCA 1988). Therefore, the conviction and sentence for armed robbery is affirmed, and the conviction and sentence for possession or display of a firearm is stricken. See Hall v. State, supra.
Affirmed as modified.