VERNON KEMP, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Vernon Kemp Jr. sought post-conviction relief claiming his trial judge was absent during jury selection, violating his constitutional rights. The court affirmed the trial court's denial of relief, finding that Kemp had validly waived his right to the judge's presence through a written waiver signed on advice of counsel.
A defendant may validly consent to the absence of the trial judge during voir dire. A written waiver, particularly one with a complete explanation of the right waived and attorney certification, is sufficient to establish prima facie validity of the consent, and an evidentiary hearing is not required when the defendant does not challenge the voluntariness and intelligence of the waiver in the motion itself.
[1] A defendant may validly consent to the absence of the trial judge during jury selection.
[2] A written waiver of the right to have the judge present during jury selection, when executed with counsel's advice and explanation, is sufficient to establish the validit…
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“It is established that one may validly consent to the absence of the trial judge during voir dire.”
Establishes the foundational legal principle that the right to the judge's presence during jury selection is waivable.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKemp was convicted at trial where the judge was not present during jury selection (voir dire). Prior to trial, Kemp executed a written waiver of his r…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Voluntariness Of Waiver cases and more on FLexlaw
SCHWARTZ, Chief Judge.
Kemp moved for relief from his criminal conviction under Florida Rule of Criminal Procedure 3.850 on the asserted ground that the trial judge had not been present during jury selection. See Singletary v. State, 543 So. 2d 755 (Fla. 3d 1988); Carter v. State, 512 So. 2d 284 (Fla. 3d DCA 1987); Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA 1983), pet. for review denied, 436 So. 2d 100 (Fla.1983). The trial court denied the motion without an evidentiary hearing because, on advice of counsel, the defendant had executed a written waiver of that right.1 It is established that one may validly consent to the absence of the trial judge during voir dire. See Brown v. State, 538 So. 2d 833 (Fla.1989); Roberts v. State, 510 So. 2d 885 (Fla.1987), cert. denied, - U.S. -, 108 S.Ct. 1123, 99 L.Ed.2d 284 (1988); Carter v. State, 512 So. 2d at 284. Moreover, the existence of a simple waiver — and a fortio-ri one with the complete explanation contained in the present consent — is sufficient to establish, at least prima facie, the validity of that consent. See Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983), review denied, 462 So. 2d 1105 (Fla.1985). The order under review was therefore correctly entered.
While the defendant now attempts to argue that the waiver was not voluntarily and intelligently executed — which would be a heavy burden indeed to establish in the light of the contents of the form— Kemp, who did not even acknowledge the existence of a written waiver, made no such claim in the 3.850 motion before us. Since it cannot be assumed that he would do so, as required, under oath, e.g., Williams v. State, 539 So. 2d 9 (Fla. 1st DCA 1989); Deese v. State, 530 So. 2d 384 (Fla. 1st DCA 1988); Cherry v. State, 526 So. 2d 1071 (Fla. 1st DCA 1988), and since the issue was in any case not before the trial court in any way, we decline to consider it now. See Francois v. Wainwright, 741 F. 2d 1275 (11th Cir.1984); Tillman v. State, 471 So. 2d 32 (Fla.1985).
Affirmed.
. The consent provided:
WAIVER
I have been advised of my right to have the . jury to try my case selected before myself, my lawyers, and with the Judge present.
I have been given the opportunity to have the jury panel selected out of the presence of the Judge. I specifically waive any legal right I may have for the presence of the Judge during jury selection and agree to have the jury selected by the lawyers out of the presence of the Judge.
I have discussed this procedure fully with my lawyer and agree as stated above.
/s/Vernon Kemp, Jr. CERTIFICATE OF ATTORNEY
I hereby certify that I am attorney of record for Vernon Kemp, that I have explained to him/her the right to have the Judge present during jury selection, and that he has freely and understandingly executed the foregoing waiver. Oct. 21, 1986 (ATTORNEY) /s/Owen Chin
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Moriyon v. State, 543 So. 2d 379 (Fla. 3d DCA 1989)…es also supplied this court with a copy of a waiver signed by Mori-yon in which he relinquished his right to have the trial judge present during voir dire. The identical waiver has been deemed to establish a prima facie valid consent. Kemp v. State, 541 So. 2d 1332 (Fla. 3d DCA 1989). Having reviewed the supplemental briefs and the waiver, we conclude that Moriyon knowingly and intelligently waived his right to the judge’s presence during voir dire. Brown; Kemp; Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA), re…
-
Hernando Pinzon v. State, 559 So. 2d 1257 (Fla. 3d DCA 1990)…PER CURIAM. Affirmed. See and compare State v. Hernandez, 552 So. 2d 911 (Fla.1989); Kemp v. State, 541 So. 2d 1332 (Fla. 3d DCA 1989); State v. Fisher, 529 So. 2d 1256 (Fla. 3d DCA 1988); State v. Wells, 516 So. 2d 74 (Fla. 5th DCA 1987); Palmer v. State, 467 So. 2d 1063 (Fla. 3d DCA 1985); State v. Delgadillo, 458 So. 2d 20 (Fla. 3d DCA 1984); P.L.R. v. State,…
Authorities Cited (13 total)
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- Roberts v. State, 510 So. 2d 885 (Fla. 1987)
- Francois v. Louie L. Wainwright, 741 F.2d 1275 (11th Cir. 1984)
- Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983)
- Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA 1983)
- Brown v. State, 538 So. 2d 833 (Fla. 1989)
- Dumas v. State, 462 So. 2d 1105 (Fla. 1985)
- Williams v. State, 539 So. 2d 9 (Fla. 1st DCA 1989)
- Deese v. State, 530 So. 2d 384 (Fla. 1st DCA 1988)
- Jackson v. State, 512 So. 2d 284 (Fla. 3d DCA 1987)