JOHN DENMARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Denmark was convicted of aggravated assault with a firearm against his mother. On appeal, he challenged the conviction on two grounds: a juror's relationship to the investigating deputy sheriff and an alleged irregularity in the verdict foreperson's name. The court affirmed the conviction, finding both issues waived.
Both issues were waived by Denmark's failure to raise them properly at trial. The first issue was waived when Denmark's counsel failed to challenge the juror for cause before the jury was sworn, despite being able to do so under Florida Statutes section 913.03(9). The second issue was waived because Denmark did not object to the verdict irregularity while the jury was still in court, as required by Florida Rule of Criminal Procedure 8.570.
[1] A defendant waives the right to challenge a juror for cause on appeal by failing to object to the juror before the jury is sworn.
[2] A defendant may raise the issue of ineffective assistance of counsel in a post-conviction motion, even if the issue was not preserved for direct appeal.
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“Under section 913.03(9), Florida Statutes (1989), Denmark's counsel could have challenged the juror for cause, yet, after questioning the juror about his impartiality, did not do so.”
Establishes that counsel had the procedural opportunity to challenge the juror and waived the issue by failing to do so before jury was sworn.
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Join FLexlaw to unlock all legal intelligenceDenmark was charged with aggravated assault with a firearm against his mother. During jury selection, a juror was seated whose father was the deputy s…
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ERVIN, Judge.
John Denmark appeals his conviction for aggravated assault of his mother with a firearm. We affirm all issues raised and address only two. In the first, Denmark asserts reversible error because a juror was allowed to serve who was the father of the deputy sheriff who investigated the incident, filed the complaint against Denmark, and testified against him at trial. Under section 913.03(9), Florida Statutes (1989),1 Denmark’s counsel could have challenged the juror for cause, yet, after questioning the juror about his impartiality, did not do so. See, e.g., Polynice v. State, 568 So. 2d 1346 (Fla. 4th DCA 1990). Denmark thus waived this issue for appeal by failing to challenge the juror for cause before the jury was sworn. State v. Rodgers, 347 So. 2d 610 (Fla. 1977); Ex parte Sullivan, 155 Fla. 111, 19 So. 2d 611 (1944). We therefore affirm, without prejudice to Denmark’s right to raise this issue in a post-conviction motion claiming ineffective assistance of counsel. See, e.g., Russell v. State, 521 So. 2d 379 (Fla. 1st DCA 1988).
The next issue requiring comment is that claiming an irregularity in the rendition of the verdict, because the name of the foreperson who signed the verdict form does not appear in the trial transcript as a member of the jury. This court relinquished jurisdiction to permit the trial court to conduct an evidentiary hearing regarding the question. After a thorough investigation, the court found that the same six people who were impan-elled as jurors heard the case and returned the verdict, and that substandard court reporting resulted in an erroneous transcription of the foreperson’s name.2 We are satisfied with the trial court’s findings and therefore conclude that Denmark has failed to demonstrate reversible error. In so deciding, we observe that courts have repeatedly adhered to the requirement of Florida Rule of Criminal Procedure 8.570,3 providing that an objection to any irregularity in a verdict must be raised while the jury is still in court. See, e.g., Whilden v. State, 301 So. 2d 35 (Fla. 1st DCA 1974); Pineiro v. State, 615 So. 2d 801 (Fla. 3d DCA 1993); Wolfram v. State, 568 So. 2d 992 (Fla. 5th DCA 1990). Denmark thus waived any challenge to the verdict.
AFFIRMED.
ZEHMER, C.J., and VAN NORTWICK, J., concur. . That statute enumerates twelve grounds for challenging a juror for cause, including:
(9) The juror is related by blood or marriage within the third degree to the defendant, the attorneys of either party, the person alleged to be injured by the offense charged, or the person on whose complaint the prosecution was instituted [.]
(Emphasis added.)
. Indeed, every juror's name was erroneously transcribed.
. That rule provides:
No irregularity in the rendition or reception of a verdict may be raised unless it is raised before the jury is discharged. No irregularity in the recording of a verdict shall affect its validity unless the defendant was in fact prejudiced by the irregularity.
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Smith v. State, 76 So. 3d 379 (Fla. 1st DCA 2011)…on to preside over jury selection, and defense counsel did not seek to disqualify the judge, we conclude without further discussion that the first issue was affirmatively waived for appeal and did not involve fundamental error. See Denmark v. State, 656 So. 2d 166 (Fla. 1st DCA 1995). On the second issue, the trial court gave an [*381] inapplicable jury instruction and misread another instruction and, in so doing, denied Appellant a fair trial and committed fundamental error. We are constrained to reverse the…
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Ogden v. State, 658 So. 2d 621 (Fla. 3d DCA 1995)…reserved the point for appellate review. State v. Rodgers, 347 So. 2d 610 (Fla.1977); Ex parte Sullivan, 155 Fla. 111, 19 So. 2d 611 (1944); Jenkins v. State, 380 So. 2d 1042 (Fla. 4th DCA), rev. denied, 389 So. 2d 1111 (Fla.1980); Denmark v. State, 656 So. 2d 166 (Fla. 1st DCA 1995) [20 Fla.L.Weekly D490]. Moreover, no funda [*623] mental error has been shown on this record as it is clear that the subject juror was fully qualified under Florida law to sit as a juror in this case. Third, we reject the defen…
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Judah v. State, 654 So. 2d 994 (Fla. 1st DCA 1995)…nsel did not object to Mr. Scurry’s excusal, although in subsequent comments counsel characterized the removal of Scurry as “questionable.” The six jurors were selected and were duly sworn without an objection from defense counsel. Denmark v. State, 656 So. 2d 166 (Fla. 1st DCA 1995) (waiver of issue where counsel failed to challenge juror for cause before jury was sworn). The purpose of preserving alleged error in the lower tribunal is to afford the judge an opportunity to consider the matter in question. T…
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
- Ex parte Sullivan, 155 Fla. 111 (Fla. 1944)
- State v. Mitchell, 347 So. 2d 610 (Fla. 1977)
- Pineiro v. State, 615 So. 2d 801 (Fla. 3d DCA 1993)
- Wolfram v. State, 568 So. 2d 992 (Fla. 5th DCA 1990)
- Colin H. Russell v. State, 521 So. 2d 379 (Fla. 1st DCA 1988)
- Whilden v. State, 301 So. 2d 35 (Fla. 1st DCA 1974)
- Hall v. State, 568 So. 2d 1346 (Fla. 1st DCA 1990)