GEORGE WILLIAM WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Walker appealed his convictions for kidnapping and sexual battery on the ground that the trial court improperly excluded him from the jury selection process during the exercise of peremptory challenges, despite his requests to be present. The appellate court reversed and remanded for a new trial, holding that a defendant has a constitutional right to be present during the exercise of peremptory challenges, which is a critical stage of trial proceedings.
The court held that a defendant has a right to be present during the exercise of peremptory challenges, as this is not a mere mechanical function but rather a critical stage of trial that may involve important on-the-spot strategy decisions. The involuntary exclusion of a defendant from the exercise of peremptory challenges is reversible error unless the court is satisfied beyond a reasonable doubt that the error was harmless.
[1] A defendant has the right to be present during the challenging of the jury.
[2] The exercise of peremptory challenges is a critical stage of the proceedings at which a defendant has the right to be present.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 3.180(a)(4), Florida Rules of Criminal Procedure, provides that "[D]efendant shall be present ... during the ... challenging ... of the jury."”
Establishes the applicable procedural rule requiring defendant's presence during jury challenges
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Join FLexlaw to unlock all legal intelligenceDuring voir dire, the trial judge, prosecutor, and defense counsel retired to a separate room to exercise peremptory challenges, excluding the defenda…
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LEHAN, Judge.
Defendant appeals his convictions and sentences for kidnapping and sexual battery. We reverse.
Defendant’s contention on appeal is that the trial court erred in not permitting his presence during the exercise of peremptory challenges despite his requests to be present and his objections to being excluded.
Voir dire questioning of prospective jurors was conducted in open court in defendant’s presence. However, the trial judge, assistant state attorney, and defense counsel retired to another room, out of the jury’s presence, for the exercise of peremptory challenges. Defense counsel conveyed defendant’s request that defendant be present at that time. The judge, after ascertaining from defense counsel that defendant had been consulted concerning the subject of peremptory challenges, denied the request.
Rule 3.180(a)(4), Florida Rules of Criminal Procedure, provides that “[Djefendant shall be present ... during the ... challenging ... of the jury.” The state nonetheless argues that defendant was not entitled to be present at the “mechanical function” of exercising challenges and that that function is not a “critical stage of the proceedings,” citing Hall v. State, 420 So. 2d 872 (Fla.1982). The state also argues that Francis v. State, 413 So. 2d 1175 (Fla.1982), which found the exclusion of a defendant from the jury selection process to be reversible error, is distinguishable because in Francis defendant was not present during jury selection procedures conducted in the presence of the jury.
However, the exercise of challenges by a defendant is not necessarily a mere “mechanical function.” It may involve the formulation of on-the-spot strategy decisions which may be influenced by the actions of the state at the time. In Hall defendant was absent only from the roll call or general qualifications of the jurors. On the other hand, the exercise of peremptory challenges is “essential to the fairness of a trial by jury,” and we cannot approve the erroneous exclusion of defendant unless we are satisfied beyond a reasonable doubt that the error was harmless. Francis at 1178.
Our position is substantially the same as that of the Florida Supreme Court in Francis where it was said that “[W]e are unable to assess the extent of prejudice, if any, Francis sustained by not being present to consult with his counsel during the time his peremptory challenges were exercised. Accordingly, we conclude that his involuntary absence without waiver by consent or subsequent ratification was reversible error and that Francis is entitled to a new trial.” Id. at 1179.
The trial court’s offer, which was not accepted by defense counsel, to permit defendant’s presence under guard and in handcuffs during the exercise of challenges was not made until after defendant had already been excluded, over his objections, from a portion of the challenge procedures.
REVERSED AND REMANDED FOR A NEW TRIAL.
GRIMES, A.C.J., and SCHOONOVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jefferson Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984)…t is well settled that the challenging of jurors is one of the essential stages of a criminal trial where a defendant’s presence is required. Herzog v. State, 439 So. 2d 1372 (Fla.1983); Francis v. State, 413 So. 2d 1175 (Fla.1982); Walker v. State, 438 So. 2d 969 (Fla. 2d DCA 1983); Rule 3.180(a)(4), Florida Rules of Criminal Procedure. Thus, appellant’s exclusion violated his constitutional right to be present at a stage where fundamental fairness might be thwarted by his absence. Francis v. State, 413 So.…
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Matthews v. State, 687 So. 2d 908 (Fla. 4th DCA 1997)…CA 1990). The examination and challenge of potential jurors is one of the essential stages of a criminal trial where a defendant’s presence is mandated. Francis, 413 So. 2d at 1177; Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984); Walker v. State, 438 So. 2d 969 (Fla. 2d DCA 1983). The exercise of jury challenges by a defendant is not necessarily a mere mechanical function. Walker, 438 So. 2d at 970. It may involve the formulation of on-the-spot strategy decisions which may be influenced by the actions of t…
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Raphael E. Salcedo v. State, 497 So. 2d 1294 (Fla. 1st DCA 1986)…hanical function” but may involve the formulation of on-the-spot strategy decisions which may be influenced by the acts of the state at the time. The exercise of peremptory challenges is essential to the fairness of a trial by jury. Walker v. State, 438 So. 2d 969, 970 (Fla. 2d DCA 1983) citing Francis at 1179. Based on these authorities, we find that Salcedo’s motion for new trial alleged fundamental error which no objection was necessary to preserve. The order appealed from is reversed and the case remande…
Authorities Cited
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- Hall v. State, 420 So. 2d 872 (Fla. 1982)