
    STATE of Florida, Appellant/Cross-Appellee, v. Corey Lynn COLBERT, Appellee/Cross-Appellant.
    No. 87-1613.
    District Court of Appeal of Florida, Second District.
    March 11, 1988.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellant/cross-ap-pellee.
    James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appel-lee/ cross-appellant.
   PER CURIAM.

In this appeal, we find no merit in either the state’s appeal or the defendant’s cross-appeal. We discuss only the defendant’s question whether the trial court erred in giving what defendant categorizes as a “modified Allen charge.”

Defendant was charged with one count of kidnapping, two counts of sexual battery and one count of lewd assault on a child. The victim in each count was a female child twelve years of age at the time of the offenses. The lewd assault charge involved the same incident as charged in one of the sexual battery counts. On the kidnapping count, the jury found defendant guilty of the lesser included offense of false imprisonment. Defendant was found not guilty of one sexual battery count and guilty of the other sexual battery count and the lewd assault count that involved the same incident. After trial, on the basis of defendant’s post-trial motions, the trial judge properly set aside the lewd assault conviction on the authority of State v. Hightower, 509 So.2d 1078 (Fla.1987). Hightower holds that a sexual battery charge and a lewd assault charge involving the same incident and acts with a child under sixteen are mutually exclusive.

Defendant argues that a mistrial should have been granted on all counts in lieu of the “modified Allen charge” that was given to the jurors during their deliberations. We disagree. The jury deliberated between four and five hours before returning its verdicts on all counts. They returned to the courtroom several times during their deliberations for further instructions or other information. They never announced that they were deadlocked or that they anticipated being unable to reach a verdict on any of the counts. It appears, though it is not definitively established by the record, that early into their deliberations they announced they would not break for dinner as they had reached verdicts on three of the four counts. It was never established which counts they had reached verdicts on at that time or what the verdicts were.

At one point, the jury returned to the courtroom to request further instruction on false imprisonment. Sometime later, they returned and asked that the victim’s testimony and that of one other witness be read to them. Because there had been a change of court reporters during the trial, it was impossible to read the testimony at that time, late on Friday afternoon. The trial judge then had considerable discussion with counsel as to whether a mistrial should be granted on all counts, or just the counts on which a verdict had not been reached or whether the jury should be excused over the weekend so they could be read the testimony on Monday. The trial judge finally announced that she would call the jury back to the courtroom, explain the predicament and announce she would accept the verdicts they had reached and declare a mistrial on those counts which had not been decided. When the jury was called back and the matter explained to them, the trial judge informed them they could discuss the matter among themselves and, in light of what she had told them, they could proceed to reach a verdict on the remaining counts or, if they could not, she would then declare a mistrial. The jury decided to proceed and within ten minutes returned with the aforedescribed verdicts deciding all four counts of the information.

Defendant argues that the trial judge should not have altered the procedure she had announced to counsel and allow the jury to elect to proceed. Defendant argues that a mistrial should have been declared on all counts. We do not agree. The situation presented to the trial judge was unusual. The jury had not announced a deadlock nor had it in any way indicated it could not reach a verdict. When the verdicts were returned, the trial judge asked if defense counsel desired to inquire of the jury which counts had previously been decided and which decided in their last brief deliberation. Defense counsel declined the offer.

It is clear from the record that the trial judge heard extensive arguments of counsel both before and after the jury’s deliberation. We conclude the trial judge’s final instruction to the jury allowing it the option to proceed without reading the requested testimony was the correct instruction. It was not prejudicial error for the trial judge to reach her final decision on that alternative after discussing the matter with the jury and without previously announcing that alternative to counsel. Counsel has not demonstrated how the trial judge’s handling of the matter constituted error.

Affirmed.

CAMPBELL, A.C.J., and PARKER, J., concur.

SCHOONOVER, J., dissents with opinion.

SCHOONOVER, Judge,

dissenting.

I respectfully dissent. I would reverse and remand for a new trial on the sexual battery and false imprisonment charges on which the defendant was convicted and sentenced.

The record establishes that prior to the jury request involved in this matter, the jury had been brought into the courtroom on one prior occasion. At that time, the jury asked a question concerning the false imprisonment charge and was referred to the written jury instructions which had been provided to each juror.

The court next reconvened to consider the jury’s request to have the testimony of the victim and another witness read back to it. The court announced that the testimony could not be read because the court reporter who took the requested testimony was not present and the reporter’s notes and tapes were not available; therefore, the court would have to consider alternatives.

The defendant suggested a mistrial, and the state suggested that the jurors be informed that they could either deliberate further and rely on their own memories, or they could come back Monday and have the requested testimony read to them.

Before ruling on the jury’s request, the judge had the jurors brought into the courtroom and advised them that the testimony was not available. The judge then asked the jury if it had been able to reach a verdict on any of the counts without the necessity of hearing the requested testimony and, if so, whether it had reached a verdict on more than one count. The jury answered both questions in the affirmative and was then sent back to the jury room.

The judge then informed the attorneys that she was inclined to have the jury return the verdicts on those counts on which it had been able to reach a final verdict, unaffected by its request to listen to the testimony, and to declare a mistrial on the other count or counts. The defendant argued that since all the charges were interrelated, a mistrial should be granted on all counts. The state argued that each charge was separate and distinct. The judge then stated, “So, I’m going to deny the motion for mistrial as to the entire trial, have the jury return the verdicts that they have reached a decision on and declare a mistrial on those counts that they have not reached a decision on.”

The jury was returned to the courtroom at 7:57 p.m. The judge stated to the jury, “So, what I’m going to do is ask you to present the verdicts that you have reached, and it would be my intention to declare a mistrial as to those — that count or those counts that you have not reached a verdict on.” The judge went on to say:

Now, knowing that that is what I intend to do, if you wish to continue your deliberations, you may do that. If you do not feel that you could reach a verdict on those matters that you have not reached one on knowing this testimony is not available, then I’m asking you to submit the verdicts that you have to the Court. If you feel that you need to go to the jury room to discuss that, you may do that.

The jury responded affirmatively and retired at 7:59 p.m. The defendant then renewed his objection to the instruction that the court had announced it was going to give and also objected to the additional instruction that the court had given without prior notice to counsel or opportunity to object.

Pursuant to the court’s instruction, the jury went to the jury room, considered the alternatives given it by the court, decided to deliberate, reached verdicts on all counts, and returned to the courtroom at 8:03 p.m., only four minutes after it had last retired.

Although I believe that portion of the last instruction which gave the jury the option to deliberate further without the requested testimony being read back to them would have been correct if given alone, it was improper when the jurors were first told that the court would declare a mistrial on those counts that they had not reached a verdict on. Furthermore, the court erred by not informing the attorneys of its intention to give the instruction and allowing them the opportunity to object and argue their position before the instruction was given.

Florida Rule of Criminal Procedure 3.410 provides that if jurors request additional instructions or to have any testimony read to them after they have retired to consider their verdict, they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. The rule provides further, however, that such instruction shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

In Ivory v. State, 351 So.2d 26 (Fla.1977), the supreme court in considering rule 3.410 held that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and 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. This right to participate includes the right to place objections on the record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored. Ivory; See also, Coley v. State, 431 So.2d 194 (Fla. 2d DCA 1983).

When the jury here asked to have certain testimony read back to it, the court could have, within a proper exercise of its discretion, either recessed until the court reporter who took the testimony was available to read the testimony to the jury or instructed the jurors that the testimony was not available and that they should rely on their memories and continue their deliberations. Simmons v. State, 334 So.2d 265 (Fla. 3d DCA 1976). Instead, after having informed the attorneys that the jury would be instructed to return verdicts on those charges they had already decided and that she was going to declare a mistrial on the remaining charges, the judge gave the modified instruction quoted above without any prior notice to the attorneys of her intention to give the modified instruction. This was error because the parties, through their counsel, have the right to be advised of any questions raised by the jury and any proposed responses to said questions. Flowers v. State, 348 So.2d 602 (Fla. 4th DCA 1977). See also, Ivory.

I could agree with the majority that the final part of the modified instruction in which the judge gave the jury the option of continuing its deliberations without having the requested testimony read to it was a proper instruction if the court had followed rule 3.410. See Simmons. The judge erred, however, by preceding that instruction with the statement that she was going to declare a mistrial if the jurors chose not to deliberate further. Since the jury had never announced that it could not reach a verdict nor indicated that it was deadlocked, the giving of what the defendant referred to as a modified “Allen” charge was improper. Warren v. State, 498 So.2d 472 (Fla. 3d DCA 1986), petition for review denied, 503 So.2d 328 (1987). I cannot say that the defendant was not prejudiced as a result of this charge when the jury, who minutes earlier had asked that lengthy testimony be read back to it, decided to proceed, deliberated, signed verdicts, and returned to the courtroom in four minutes. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

Even if the portion of the instruction giving the jury the option to continue its deliberations had been proper and had been given for the purpose of correcting the first portion of the instruction, the court still erred by not following Florida Rule of Criminal Procedure 3.420 which allows the court to recall the jurors after they have retired to consider their verdict for the purpose of correcting any erroneous instruction already given to them. This rule provides that such corrective instructions may be given only after notice to the prosecuting attorney and to counsel for the defendant. Fla.R.Crim.P. 3.420.

Because the court, to the possible prejudice of the defendant, gave counsel neither prior notice of its last instruction to the jury nor the opportunity to make full argument as to the instruction given, I would reverse and remand for a new trial. Fla.R. Crim.P. 3.410 and 3.420; Ivory. 
      
      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
     