We need not decide, in the case before us, whether an unrecorded communication between the court and the jury outside the presence of counsel requires reversal, although it has so been held. See Flowers v. State, 348 So.2d 602 (Fla. 4th DCA 1977). Here, the jury question was in writing as was the answer, and both were made a matter of record, so that what was asked and what was answered are clear.
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.
Fla.R.Crim.P. 3.410.See generally Davis v. State, 408 So.2d 795 (Fla. 2d DCA 1982); Flowers v. State, 348 So.2d 602 (Fla. 4th DCA 1977); Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976); Slinsky v. State, 232 So.2d 451 (Fla. 4th DCA 1970). Appellant also argues the contact between the bailiff, the witness and the jury violated section 918.07, Florida Statutes (1981).
PER CURIAM. Reversed on the authority of Flowers v. State, 348 So.2d 602, Fourth District Court of Appeal, opinion filed July 1, 1977, and the cause remanded for a new trial. Reversed and remanded.