THOMAS v. STATE (1997)

District Court of Appeal of Florida,First District.

Shawn THOMAS, Appellant, v. STATE of Florida, Appellee.

No. 96-4639.

Decided: September 26, 1997

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.

The appellant contends that his convictions should be reversed because the trial judge committed error when he sent an instruction to the jury during its deliberations without first notifying the prosecutor and defense counsel and giving them an opportunity to discuss the proposed instruction. See Fla. R.Crim. Pro. 3.410. Although such a violation of rule 3.410 would ordinarily constitute per se reversible error under Ivory v. State, 351 So.2d 26 (Fla.1977), here we conclude that the appellant's trial counsel affirmatively waived the issue by communicating to the trial judge his acceptance of the procedure employed when later given an opportunity to object. We accordingly affirm the convictions.

PER CURIAM.

MINER, ALLEN and PADOVANO, JJ., concur.

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