Mistrial: Presence of Alternate Juror During Deliberation

Tello-Lugo v. State, ___ So. 3d ___, 35 Fla. L. Weekly D2581 (Fla. 2d DCA 11/24/10)

“Florida Rule of Criminal Procedure 3.280(a) provides that ‘an alternate juror who does not replace a principal juror shall be discharged at the same time the jury retires to consider its verdict.’  This rule is mandatory, not permissive. . . .  This rule applies when the alternate juror is present after the jurors begin discussion of the case, and not when the alternate is ‘present only during the time the jury engages in organizational activity such as taking breaks, making phone calls, or electing the foreperson and the case is not discussed in his or her presence.’” “Because the alternate juror [in this case] admitted that she was present while the jurors were discussing the case, the trial court should have granted [the defendant’s] motion for a mistrial.”