FRANK L. GLEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
In this appeal from his conviction and sentence Frank L. Glee argues that it was reversible error for the trial judge to leave the courtroom during the readback of testimony by the court reporter. We agree, and reverse and remand for a new trial.
An accused has a fundamental right to have the trial judge present at all stages of the proceedings. Brown v. State, 538 So. 2d 833 (Fla.1989). The accused may waive that right in certain limited circumstances, but not through counsel acting alone. Id. See also Jackson v. State, 636 So. 2d 99 (Fla. 3d DCA 1994); Maldonado v. State, 634 So. 2d 661 (Fla. 5th DCA 1994); and Young v. State, 591 So. 2d 651 (Fla. 1st DCA 1991). We agree with our sister court that this issue is not susceptible to a harmless error test. See Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA), rev. denied, 436 So. 2d 100 (Fla.1983).
The foregoing analysis renders moot the additional points on appeal.
REVERSED AND REMANDED.
DELL, C.J., HERSEY, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.
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Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998)…cate that the defendant made the “fully informed and advised” waiver contemplated by Brown, and not simply a waiver by counsel acting alone. Brown, 538 So. 2d at 835. This issue is not susceptible to a harmless error test. See Bryant; Glee v. State, 639 So. 2d 1092 (Fla. 4th DCA 1994); Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996). We address Harbaugh’s final point because it may arise on retrial. He contends that he is entitled to have a jury decide the fact issue of whether he has three prior convict…1 / 2
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Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996)…of the judge’s presence by Ferrer himself. Such circumstances are considered fundamental error and are per se reversible. Bryant v. State, 656 So. 2d 426, 428-29 (Fla.1995); Wal [*660] lace v. State, 650 So. 2d 95 (Fla. 5th DCA 1995); Glee v. State, 639 So. 2d 1092 (Fla. 4th DCA 1994); Maldonado v. State, 634 So. 2d 661 (Fla. 5th DCA 1994). The governing standard to be applied in evaluating claims of ineffective assistance of appellate counsel is as follows: A person convicted of a crime, whose conviction ha…1 / 2
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Morris v. State, 715 So. 2d 1177 (Fla. 4th DCA 1998)…, 682 So. 2d 659 (Fla. 3d DCA 1996). However, this right can be waived provided the waiver is made “by a fully informed and advised defendant, and not by counsel acting alone.” Bryant v. State, 656 So. 2d 426, 428 (Fla.1995); see also Glee v. State, 639 So. 2d 1092 (Fla. 4th DCA 1994) (right to judge’s presence during read-back of testimony can be waived, but not through counsel acting alone). In the instant case, the judge clearly advised Defendant of his right to the judge’s presence during the read-back and…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peri v. State, 426 So. 2d 1021 (Fla. 3d DCA 1983)
- Brown v. State, 538 So. 2d 833 (Fla. 1989)
- Maldonado v. State, 634 So. 2d 661 (Fla. 5th DCA 1994)
- Young v. State, 591 So. 2d 651 (Fla. 1st DCA 1991)
- Jackson v. State, 636 So. 2d 99 (Fla. 3d DCA 1994)