Opinion
No. 93-2791.
June 21, 1994.
An Appeal from the Circuit Court for Dade County; Ellen J. Leesfield, Judge.
Bennett H. Brummer, Public Defender, and Manuel Alvarez, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Joni Braunstein, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.
Jorge Esteban Gonzalez appeals his convictions for kidnapping without a firearm, and battery. Pursuant to Mills v. State, 620 So.2d 1006 (Fla. 1993), quoting Ivory v. State, 351 So.2d 26 (Fla. 1977), and citing to State v. Franklin, 618 So.2d 171 (Fla. 1993), it is per se reversible error for a trial court to respond to a jury's request for re-instruction without first notifying a defendant and defense counsel, and giving them an opportunity to be heard on the questions presented, regardless of the circumstances. This kind of violation of Florida Rule of Criminal Procedure 3.410 is not subject to a harmless error analysis. Accordingly, upon our consideration and the state's confession of error, the order under review is reversed and the case remanded.