
    Clarence Lee DIXON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D97-3181.
    District Court of Appeal of Florida, Third District.
    July 19, 2000.
    Rehearing Denied Aug. 30, 2000.
    Bennett H. Brummer, Public Defender, and J. Rafael Rodriguez, Specially Appointed Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Darien M. Doe, Assistant Attorney General, for appellee.
    Before GODERICH, SHEVTN, and SORONDO, JJ.
   PER CURIAM.

In Dixon v. State, 768 So.2d 464 (Fla. 3d DCA 1999), the defendant contended that he was entitled to a new trial because the trial court failed to notify his counsel that the jury had sent a note to the court after they had retired to consider the verdict. The defendant contended that the note implicated Rule 3.410, Florida Rules of Criminal Procedure. Because there was an absence of evidence as to the note’s contents, this Court remanded the cause “for an evidentiary hearing to give the defendant an opportunity to supplement the record with sworn affidavits, testimony and evidence that may shed light as to the contents. Fla. R.App. P. 9.200(f).” Dixon, 768 So.2d at 464-65.

On remand, the trial court conducted two evidentiary hearings. At these hearings, the defense counsel and the assistant state attorney filed affidavits wherein they averred that they did not recall a jury note and that they did not recall addressing any jury question. The bailiff testified that if a note was submitted, he would have taken it to the judge immediately, but that he had no recollection of a note.

The court clerk testified that although she had no specific recollection of a note, she could infer from her standard office procedure that if the clerk’s notes indicated that the “Jurors sent a note to the Court (See Court Exhibit # 1),” there was, in fact, a note. She also inferred, that when the evidence was returned, the note was not there and that is why the court clerk, who had relieved her, crossed it out.

The first juror testified that the foreperson wrote a note asking when the jury was going to eat, that he recalled the note being given to the bailiff, and that the bailiff told him that food would be taken care of later and that they should concentrate on deliberating. The first juror also testified that the jury had verbally asked the bailiff to look at the pictures in evidence but that there was no note regarding this issue.

The second juror testified that she did not recall a note being sent out, but that if they had sent one out, it would have been about seeing pictures in evidence. The third juror testified that he did not recall a note being sent out. The fourth juror testified that he did not remember a note being sent out, but that if there was a note, it would have been about food. The parties stipulated that the fifth juror had no recollection of the note.

The sixth juror, the foreperson, testified that she remembered a note, but had no recollection about what it said. She did, however, recall someone asking about food. She testified that the note did not ask any legal questions or for the court to clarify any point of law.

The parties have now submitted supplemental briefs and transcripts of the evi-dentiary hearings below. The defendant continues to argue that Rule 3.410 is implicated. We agree.

Rule 3.410, entitled “Jury Request to Review Evidence or for Additional Instructions,” provides:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

(emphasis added).

Further, in Bradley v. State, 513 So.2d 112, 113 (Fla.1987), the Florida Supreme Court gave Rule 3.410 a broad definition. See Grimes v. State, 763 So.2d 1237, 1238 (Fla. 3d DCA 2000) (Sorondo, J., concurring n. 2)(“It is clear, however, that the Supreme Court of Florida has given the word ‘instruction,’ as used in Rule 3.410, an expansive meaning.”).

In the instant case, the jurors’ testimony indicates that there was probably a note, and that it was either about food or about viewing pictures that were in evidence. If the note was about food, Rule 3.410 is not implicated, but if it was about viewing pictures that were in evidence, Rule 3.410 is definitely implicated. Of further concern is the testimony that the bailiff may have orally been asked about viewing pictures that were in evidence and that this request may have not been reported to the trial court. Because the totality of the evidence seems to indicate that there was some jury communication that was covered by Rule 3.410 and that the prosecuting attorney and the defense counsel were not given proper notice, we are compelled by Bradley to reverse the defendant’s conviction and remand this cause for a new trial. Bradley, 513 So.2d at 113-14.

Reversed and remanded for a new trial.

GODERICH and SHEVIN, JJ„ concur.

SORONDO, J., dissents.

SORONDO, J.

(dissenting).

I respectfully dissent. The majority accurately relates the history of the present case before this Court and the evidentiary hearing conducted by the lower court pursuant to this Court’s mandate. Unfortunately, although the lower court conducted the evidentiary hearing ordered by this Court, it did not make any factual findings in spite of the conflicting testimony presented below.

As the majority observes, neither the lawyers, the bailiff nor the trial judge had any recollection of the existence of any note from the jury. The deputy clerk in the courtroom had no independent recollection of a note but testified that she assumed that there was one because her notation indicated, “Jurors sent a note to the Court (See Court Exhibit # 1).” She further assumed that the referred to note must have been missing when the jury returned the evidence at the conclusion of the trial, which, she again assumed, explained why the notation had been crossed out by the clerk who relieved her.

Of the six people who served on the jury, four could not recall the existence of a note. One of these four jurors stated that although she could not remember the existence of a note, if there was one it would have contained a request to see the pictures in evidence. Another of the four jurors stated that although he also could not remember the existence of the note, if there was one it would have contained a request for food.

Of the remaining two jurors, one remembered that the note was a request for food. He further stated that there had been a verbal request made to the bailiff to view the pictures in evidence (the bailiff apparently had no such recollection). The remaining juror, the foreperson, remembered the existence of a note but had no recollection of its contents. She remembered asking for food but could not remember any legal questions or requests for clarifications from the court. She was specifically asked about a request for pictures:

Q. Do you remember ever asking any legal questions, like asking the Court to clarify a point of law or anything like that?
A. No. They supplied us with all the evidence before we went in there.
Q. Do you remember ever asking the court to send some pictures back for you all to look at?
A. No. I don’t think they gave that to us before we went in.

The last and most important answer, clearly a non-sequitur and inconsistent with the first answer, was not followed up by either side.

Having received this hodgepodge of uncertainty, the trial judge failed to do that which must be done at the conclusion of any evidentiary hearing — evaluate the testimony presented, determine the credibility of the witnesses, and make factual findings concerning wThat actually happened. This lapse seems to have occurred due to this Court’s initial opinion which read, in pertinent part, as follows:

Because there is no indication in the present record as to the contents of the note, if any, it is impossible to determine whether Rule 3.410 is implicated. As such, we remand for an evidentiary hearing to give the defendant an opportunity to supplement the record with sworn affidavits, testimony, and any other evidence that may shed light as to the contents of the note.... Affirmed in part and remanded for supplementation of the record.

Dixon v. State, 24 Fla. L. Weekly D394, — So.2d -, 1999 WL 68529 (Fla. 3d DCA Feb. 10, 1999)(emphasis added). It appears that the highlighted language above led the lower court to believe that all this Court was seeking was the supplementation of the record and nothing more. This belief was undoubtedly reinforced by defense counsel’s closing statement:

That’s all Judge. I think that completes what we need to do.

Counsel then summarizes the evidence set forth above and concludes:

I think we have now made a sufficient record for the Third District Court of Appeal to determine the legal issue. It’s all they have asked us to do.

Subsequent statements by the prosecutor indicate that the state’s understanding of this Court’s mandate was the same as defense counsel’s.

Regardless of the misunderstanding, it is clear that where this Court remands for an evidentiary hearing it is inherent in such an order that the lower court judge make factual findings. This is particularly necessary where, as here, there exist conflicts in the evidence. Given the conflicting and uncertain nature of the evidence presented and the absence of any factual findings, I do not believe this Court is in a position to conclude that the trial judge reversibly erred by violating the requirements of Rule 3.410.

I would relinquish jurisdiction for a period of thirty days with instructions to the lower court to complete the evidentiary hearing by recording and explaining its factual findings.  