
    Gary Lamar GRIMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D99-45.
    District Court of Appeal of Florida, Third District.
    June 7, 2000.
    Rehearing Denied July 26, 2000.
    Bennett H. Brummer, Public Defender, and Maria A. Berry, Special Assistant Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN and SORONDO, JJ.
   GODERICH, Judge.

The defendant, Gary Lamar Grimes, appeals from his conviction and sentence. We reverse.

In the instant case, the defendant was convicted of burglary of an unoccupied conveyance. During deliberations, the jury sent the trial judge a note requesting a diagram of the crime scene. The trial judge, without consulting counsel, answered stating that no diagram existed and that they would have to rely on the evidence presented at trial.

The defendant cites to Bradley v. State, 513 So.2d 112 (Fla.1987) and contends that it was per se reversible error for the trial judge to respond to a communication from the jury that is covered by Florida Rule of Criminal Procedure 3.410 without the prosecuting attorney and the defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. In Bradley, the Florida Supreme Court held that a jury’s request to read a police report that was not in evidence was a communication covered by Rule 3.410 and that the trial judge’s failure to consult counsel before responding mandated reversal. Bradley, 513 So.2d at 113-14. We agree with the defendant’s contention and are compelled by Bradley to reverse an otherwise flawless trial.

Although the State suggests that the more recent case of Mendoza v. State, 700 So.2d 670 (Fla.1997), cert. denied, 525 U.S. 839, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998), requires a different result, we disagree. In Mendoza, the Florida Supreme Court concluded that the jury’s communications with the trial judge while having lunch in the same dining area during a recess were outside the scope of Rule 3.410 and that his responses were wholly appropriate. Mendoza, 700 So.2d at 674. Alternatively, the Court reasoned that because the communications were outside the scope of Rule 3.410, harmless error analysis was applicable. Mendoza, 700 So.2d at 674. The Mendoza situation is factually distinguishable because in the instant case the jury’s communication with the trial judge was covered by Rule 3.410.

We reverse and remand for a new trial.

GREEN, J., concurs.

SORONDO, J.

(concurring).

I concur with the majority opinion because it accurately represents the will of my judicial superiors. See Bradley v. State, 513 So.2d 112 (Fla.1987)(reaffirming previous holdings that violation of Rule 3.140 is per se reversible error); Williams v. State, 488 So.2d 62 (Fla.1986); Curtis v. State, 480 So.2d 1277 (Fla.1985); Ivory v. State, 351 So.2d 26 (Fla.1977). However, this case demonstrates why these types of errors should be subject to a harmless error analysis as advocated by Justice Shaw in his concurring opinion in Williams. See Williams, 488 So.2d at 64 (Shaw, J., concurring in result only).

During deliberations, the jury sent out a note which read as follows:

Can we get a diagram of the crime scene, showing streets, direction of the officers [sic] car, flight of the defendant, etc.?

The trial court responded:

There is no diagram in evidence. You must rely on the evidence presented at trial. Please do not destroy these notes as they must be maintained in court file.

The defendant acknowledges that there was no such diagram in evidence. There is absolutely nothing defense counsel or the prosecutor could have added to the Judge’s response. Although the Judge was unquestionably wrong in failing to comply with the notice requirement of Rule 3.410, it is also inconceivable that this response could in any way have harmed the defendant, who, as the majority observes, received an immaculately fair trial. 
      
      . Florida Rule of Criminal Procedure 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.
     
      
      . The state argues that this communication did not fall within the meaning of the rule because no testimony was read and no instructions given. 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 Bradley, the jury asked: “Can we read the original police report?” In a response remarkably similar to the one in the present case, the trial judge answered: "No. The police report is not in evidence. You have to consider only the matters in evidence.” 513 So.2d at 112. The Court held this communication to be a violation of the rule reasoning that it was, in fact, an instruction. See id. at 113.
     