RAPHAEL E. SALCEDO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Salcedo appeals his conviction for trespassing, arguing the trial court erred in denying his motion for a new trial based on his absence during jury selection in violation of criminal procedure rules. The court holds that fundamental constitutional errors need not be preserved by objection and that a defendant's presence during peremptory challenges is essential, reversing and remanding for reconsideration of the motion.
The court holds that fundamental error in a criminal trial need not be preserved by objection in the lower court and can be considered on a motion for new trial. Additionally, a defendant's presence during the challenge of jurors is a fundamental right protected by the United States Constitution, and the exercise of peremptory challenges is an essential stage of trial where the defendant's presence is required.
[1] Fundamental error can be considered on appeal without objection in the lower court.
[2] A failure to object to fundamental error in a motion for new trial does not require the motion to be denied.
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Join FLexlaw to unlock all legal intelligence“if the error alleged by a criminal defendant in a motion for new trial is fundamental, any failure to object with regard to that error does not require that the motion be denied”
Establishes that fundamental errors need not be preserved by objection in the trial court
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Join FLexlaw to unlock all legal intelligenceSalcedo was convicted of trespassing in a structure. He filed a motion for new trial alleging he was not present at the beginning of trial during jury…
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MILLS, Judge.
Salcedo appeals from a conviction for trespassing in a structure. He alleges that the trial court erred in denying his motion for a new trial in which he averred that he was not present at the beginning of the trial during the challenging of the jury, in violation of Rule 3.180(a)(4), Fla.R.Crim.P. We reverse and remand for further proceedings.
The trial court denied Salcedo’s motion on the ground that his counsel failed to object to his absence at the time the peremptory challenges were being exercised. While it is the general rule that a point argued on appeal must be preserved by appropriate objection at trial, it is well settled that fundamental error can be considered on appeal without objection in the lower court. Sanford v. Rubin, 237 So. 2d 134, 137 (Fla.1970); Cato v. West Florida Hospital, Inc., 471 So. 2d 598 (Fla. 1st DCA 1985). We see no reason why this principle should not govern motions for new trial as well as direct appeals and hold that, if the error alleged by a criminal defendant in a motion for new trial is fundamental, any failure to object with regard to that error does not require that the motion be denied.
The United States Constitution guarantees a criminal defendant the right to be present during crucial stages of his trial or at the stages of his trial where fundamental fairness might be thwarted by his absence. Smith v. State, 453 So. 2d 505, 506 (Fla. 4th DCA 1984), p.f.r.d. 462 So. 2d 1107 (Fla.1985), citing Francis v. State, 413 So. 2d 1175, 1177 (Fla.1982).
The challenge of jurors is one of the essential stages of a criminal trial where the defendant’s presence is required. Lane v. State, 459 So. 2d 1145, 1146 (Fla. 3d DCA 1984). It is not a mere “mechanical 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 remanded for consideration of Sal-cedo’s motion for new trial on the merits, including the specific issue of whether or not Salcedo waived his presence at the peremptory challenges, either by consent or by subsequent ratification of the action taken in his absence. See Walker, supra; Peede v. State, 474 So. 2d 808, 813 (Fla.1985). While no transcript of the voir dire proceedings was made, Rule 3.600(c), Fla.R. Crim.P., provides that “[wjhen a motion for new trial calls for a decision on any question of fact, the court may consider evidence on such motion by affidavit or otherwise.” Therefore, on remand, the trial court can take evidence in such form as it deems necessary to the determination of Salcedo’s motion for new trial.
Reversed and remanded.
WENTWORTH, J., concurs.
BOOTH, C.J., dissents without written opinion.
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Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)…g March, which was the month defendant received one of the letters from the Flagler County probation officer. However, probation is not normally suspended or tolled retroactively unless the probationer absconds from supervision. Cf. Watson v. State, 497 So. 2d 1294 (Fla. 1st DCA 1986); Ware v. State, 474 So. 2d 332 (Fla. 1st DCA 1985), rev. denied, 484 So. 2d 10 (Fla.1986). Defendant is not objecting to that portion of the order reinstating probation which sets the two monthly payments at a minimum of $25 eac…
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Mejia v. State, 675 So. 2d 996 (Fla. 1st DCA 1996)…Johnson, 616 So. 2d 1, 3 (Fla.1993) (“for an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process”); Salcedo v. State, 497 So. 2d 1294, 1295 (Fla. 1st DCA 1986) (allegation that defendant was absent from courtroom during exercise of peremptory challenges “alleged fundamental error which no objection was necessary to preserve”), review denied, 506 So. 2d 1043 (Fla.1987). The suprem…
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Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996)…emptory jury challenges is fundamental error that may be raised for the first time on motion for new trial or on appeal. See Francis v. State, 413 So. 2d 1175, 1177-79 (Fla.1982); Mejia v. State, 675 So. 2d 996 (Fla. 1st DCA 1996); Salcedo v. State, 497 So. 2d 1294, 1295 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1043 (Fla.1987). Patently, the procedure the Coney court prescribed in order for a defendant to waive his presence or ratify jury selection in the defendant’s absence would be superfluous if the sim…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- Peede v. State, 474 So. 2d 808 (Fla. 1985)
- Jefferson Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984)
- Cato v. W. Fla. Hosp., Inc., 471 So. 2d 598 (Fla. 1st DCA 1985)
- Smith v. State, 453 So. 2d 505 (Fla. 4th DCA 1984)
- Walker v. State, 438 So. 2d 969 (Fla. 2d DCA 1983)