
    Devandal THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D99-2625.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2001.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, MELANIE G., Associate Judge.

A jury’s ability to correct a clerical error is questioned in this case. The defendant appeals his conviction of attempted carjacking with a firearm, and suggests that the trial court erred when it resubmitted the case to the jury for continued deliberations. We disagree and affirm.

The State charged the defendant with attempted carjacking with a firearm. The verdict form read in pertinent part as follows:

WE, THE JURY, find as follows as to the Defendant in this case: (Check only one)
_ A. The Defendant is Guilty of Attempted Carjacking, and in the course thereof
1. _did carry a firearm
OR
2. _did carry a deadly weapon
As charged in the Information.
_ B. The Defendant is Guilty of Attempted Carjacking, a lesser-included offense.

When the jury returned from deliberations, only A. was checked. There was no mark as to subsection one or two. The verdict was read, and the jurors polled. The trial court adjudicated the defendant guilty of attempted carjacking, and remanded him into custody. Defense counsel asked to approach the bench, at which time the parties advised the Court that the jury had failed to indicate which subsection under section A. applied. The trial court then informed the jurors, over defense objection, that he was sending them back to deliberate as follows:

The Court: Your deliberations having been concluded, in finding A., there are two subcategories. We need to know which category you did intend.

The jurors retired to the jury room, and returned shortly thereafter finding the defendant guilty of attempted caijacking with a firearm. In an abundance of caution, the trial court polled each juror to insure that the ultimate verdict had been decided upon during the first deliberation, and that the lack of a mark under section A. had simply been an oversight. Each juror gave that assurance.

Based upon Esskuchen v. State, 756 So.2d 156 (Fla. 5th DCA 2000) and Davis v. State, 631 So.2d 318 (Fla. 3rd DCA 1994), we find that there was no contamination of the jury verdict in this case. The trial court did not err in resubmitting the issue to the jury, which clearly indicated the existence of a clerical error in filling out the verdict form. Had the jury wanted to find the defendant guilty of the lesser-included offense of attempted carjacking without a firearm, section B. was available.

AFFIRMED.

TAYLOR, J., concurs.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

I concur in Judge May’s opinion. Defendant’s argument that the verdict originally returned by the jury (without indicating whether a firearm or a dangerous weapon had been employed) should stand breaks down when one considers the text of paragraph A. The sentence fragment preceding the number 1 is obviously incomplete and indicates beyond any doubt that the jury had two thoughts in mind. The first is that he committed the offense of attempted carjacking, and the second is that he employed something in connection with the offense that would make it an armed carjacking. Because the verdict was facially incomplete, the trial judge did not err in bringing the jury back and having them supply the missing information.

The entire problem could have been eliminated by moving the parenthetical, “(Check only one)”, into a place immediately preceding subparagraphs 1 and 2. Thus it would read:

_ A. The Defendant is Guilty of Attempted Carjacking and in the course thereof (Check only one)

Nevertheless as actually laid out it created an obvious ambiguity when the jury checked only block A but failed to indicate the nature of the weapon employed. I therefore concur.  