MICHAEL J. MAIO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Michael Maio was charged with a life felony and entitled to ten peremptory challenges but was limited to six by the trial court. He failed to object or contest this limitation when given the opportunity, and the appellate court affirmed the conviction, holding that his inaction did not preserve the error for appeal.
The court held that Maio's failure to object was fatal to his claim and did not preserve the error for appeal. His silent inaction, made without any affirmative assertion that he was entitled to more challenges, falls under the Verreautt standard rather than the Newsome or Bell exceptions, which require either an attempt to exercise additional challenges or a definitive trial court ruling making further challenges futile.
[1] A defendant must timely object to a trial court's erroneous limitation of peremptory challenges to preserve the issue for appeal.
[2] A defendant's attempt to exercise a peremptory challenge after the trial court erroneously limits the number of challenges may preserve the error for appeal.
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Join FLexlaw to unlock all legal intelligence“A fair reading of the colloquy is that defense counsel's effort to peremptorily challenge Ms. Barnett plainly was not an affirmative assertion that the defendant was entitled to more than six challenges.”
Establishes that counsel's action did not constitute adequate preservation of the error
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Join FLexlaw to unlock all legal intelligenceDuring jury selection in a first-degree murder case (punishable by life imprisonment), the trial court informed defense counsel that peremptory challe…
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DANIEL S. PEARSON, Judge.
In Verreautt v. State, 411 So. 2d 234 (Fla. 3d DCA 1982), we held that a defendant who was entitled to ten peremptory challenges by virtue of being charged with a life felony, but who did not timely object when the trial court mistakenly limited him to six challenges, failed to preserve this error for appeal. We distinguished Verreautt’s inaction from (a) the action of the defendant in Newsome v. State, 355 So. 2d 483 (Fla. 2d DCA 1978), whose attempt to exercise a seventh challenge was held to have adequately preserved for appeal the same error, and (b) the inaction of the defendant in Bell v. State, 338 So. 2d 1328 (Fla. 2d DCA 1976), whose failure to attempt to exercise a seventh peremptory challenge was excused because attributable to the trial court’s definitive ruling that six was the legal limit, thus rendering futile any further effort to obtain additional challenges. In the present case we are faced with Maio’s contention that his action/inaction after having exercised only six of a possible ten peremptory challenges should be considered more like that of Newsome and Bell than that of Verreautt and that, therefore, he should be awarded a new trial. We reject his contention and affirm.
As the jury selection process was drawing to a close, defense counsel peremptorily challenged a Ms. Barnett. The following colloquy transpired:
“THE COURT: You are out of challenges.
“[PROSECUTOR]: It is first degree and it is my understanding it is six challenges.
“THE COURT: First degree punishable by life.
“[PROSECUTOR]: It is not—
“THE COURT: The answer is six, if you all agree?
“[DEFENSE COUNSEL]: Where are we?
“THE COURT: Your [sic] are out. Ms. Barnett is in.”
(emphasis supplied).
The prosecutor then accepted the next juror, which completed the selection of the six-person panel:
“THE COURT: We have a panel consisting of Ms. Herleny, Mr. Long, Mr. Sheets, Ms. O’Connor, Ms. Barnett. Ms. Stump. Any challenges to that panel as constituted?
“[PROSECUTOR]: State has none. “[DEFENSE COUNSEL]: None.” (emphasis supplied).
We think a fair reading of the colloquy is that defense counsel’s effort to peremptorily challenge Ms. Barnett plainly was not an affirmative assertion that the defendant was entitled to more than six challenges. Surely, had it been so, defense counsel would have accepted the trial court’s twice-expressed invitation to disagree with the proposed six-challenge limitation. Instead, defense counsel remained silent, not because it would have been futile to do others wise, but because he mistakenly believed that six peremptory challenges were the limit and that he had already reached his limit. Thus, under the circumstances of this case, neither Newsome nor Bell apply, and as in Verreautt, the defendant’s failure to object is fatal to his claim that he was deprived of the ten peremptory challenges to which he was concededly entitled.
AFFIRMED.
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Dante v. State, 903 So. 2d 293 (Fla. 3d DCA 2005)…sue a completely useless course when the judge had announced in advance that it would be fruitless.’ ” Bell, 338 So. 2d at 1329 (quoting Bailey v. State, 224 So. 2d 296 (Fla.1969)). Accord Birge v. State, 92 So. 2d 819 (Fla.1957). In Maio v. State, 531 So. 2d 1055 (Fla. 3d DCA 1988), we affirmed the defendant’s conviction for a life felony. A review of the record revealed that “defense counsel remained silent, not because it would have been futile to do otherwise, but because he mistakenly believed that six p…
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Enamorado v. State, 733 So. 2d 1164 (Fla. 3d DCA 1999)…PER CURIAM. Appellant’s claim that he was entitled to more peremptory challenges as a matter of right was not presented to the trial court, and is thus not properly preserved for appellate review. See Maio v. State, 531 So. 2d 1055, 1056-57 (Fla. 3d DCA 1988); Verreautt v. State, 411 So. 2d 234, 234-35 (Fla. 3d DCA 1982). We decline to entertain on this direct appeal appellant’s alternative claim that trial counsel was ineffective for failing to recognize that appellant was…
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Roger v. State, 554 So. 2d 584 (Fla. 3d DCA 1989)…ard. Moreover, the trial court could not, in any event, exceed the statutory maximum sentence of five-years imprisonment for second-degree grand theft, § 812.014(2)(b), Fla.Stat. (Supp.1986); § 775.082(3)(d), Fla. Stat. (1987); see Sumpter v. State, 531 So. 2d 1055 (Fla. 3d DCA 1988); the fifteen-year sentences imposed on the two counts of second-degree grand theft do not conform to this standard. The sentences under review are, accordingly, reversed and the cause is remanded to the trial court for resentenc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bell v. State, 338 So. 2d 1328 (Fla. 2d DCA 1976)
- Newsome v. State, 355 So. 2d 483 (Fla. 2d DCA 1978)
- Benoit Verreautt v. State, 411 So. 2d 234 (Fla. 3d DCA 1982)