MARY ANTONIA PAGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mary Antonia Page appealed her criminal conviction, challenging her exclusion from bench conferences during jury selection. The court affirmed her conviction, finding that under the law preceding Coney v. State, her rights were not violated, while certifying two questions of great public importance regarding the retroactive application of Coney and the constitutionality of a statute mandating appellate review of state cross-appeals.
Under the law preceding Coney v. State, appellant's rights were not violated by her exclusion from bench conferences during jury challenges. Because the issue of retroactive application of Coney raises questions of great public importance, the court certified this issue for review. The court declined to address the state's cross-appeal challenge to the suppression ruling to avoid rendering an advisory opinion.
[1] A defendant's right to be present at jury selection bench conferences is governed by the rule in effect at the time of trial, not by subsequent case law.
[2] A court may decline to address a state's cross-appeal if doing so would result in an advisory opinion.
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Join FLexlaw to unlock all legal intelligence“Because appellant's trial took place before release of the opinion in Coney v. State, 653 So.2d 1009 (Fla.), cert. denied, — U.S. -, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), we conclude that Coney is inapplicable.”
Establishes the temporal distinction making pre-Coney law applicable to appellant's case
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Join FLexlaw to unlock all legal intelligenceDuring jury selection in appellant's trial, she was physically present in the courtroom but was not present at bench conferences where jury challenges…
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WEBSTER, Judge.
In this direct criminal appeal, appellant claims entitlement to a new trial because she was not physically present at bench conferences during which jury challenges were exercised; and the state cross-appeals, asserting that the trial court erroneously granted a motion to suppress a statement made by appellant to the authorities. We affirm.
The record reflects that, while appellant was present in the courtroom during jury selection, she was not physically present at bench conferences during which jury challenges were exercised. Because appellant’s trial took place before release of the opinion in Coney v. State, 653 So. 2d 1009 (Fla.), cert. denied, — U.S. -, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), we conclude that Coney is inapplicable. Lett v. State, 668 So. 2d 1094 (Fla. 1st DCA 1996). Pursuant to the rule which preceded that announced in Coney, appellant s rights were not violated. Francis v. State, 413 So. 2d 1175 (Fla.1982). However, as in Lett, we certify the following to be a question of great public importance:
DOES THE DECISION IN CONEY V. STATE, 653 So. 2d 1009 (Fla.), cert. denied, - U.S. -, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), APPLY TO “PIPELINE CASES,” THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT APPEAL OR OTHERWISE NOT YET FINAL WHEN THE OPINION WAS RELEASED?
In light of our resolution of the issue raised by appellant, we decline to address the issue raised by the state on cross-appeal, notwithstanding the second sentence of section 924.07(l)(d), Florida Statutes (1995). Were we to comply with that provision in a ease such as this, we would clearly be rendering what amounted to nothing more than an advisory opinion. See generally Walker v. State, 459 So. 2d 333 (Fla. 3d DCA 1984) (declining to consider state’s cross-appeal when result would be advisory opinion), review denied, 469 So. 2d 750 (Fla.1985). We are of the view that, to the extent the statute purports to dictate to the courts what issues must be addressed, regardless of necessity, it constitutes a violation of the separation of powers. However, we also certify the following to be a question of great public importance:
IS SECTION 924.07(l)(d), FLORIDA STATUTES (1995), AN UNCONSTITUTIONAL VIOLATION OF THE PRINCIPAL OF SEPARATION OF POWERS TO THE EXTENT THAT IT PURPORTS TO MANDATE THAT AN APPELLATE COURT MUST RULE UPON ISSUES RAISED BY THE STATE IN A CROSS-APPEAL, REGARDLESS OF THE DISPOSITION OF THE DEFENDANT’S APPEAL?
AFFIRMED.
MICKLE and LAWRENCE, JJ., concur.
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Exposito v. State, 891 So. 2d 525 (Fla. 2004)…llate court "review and rule upon the question raised by the state regardless of the disposition of the defendant's appeal.” See ch. 87-243, § 46, at 1658, Laws of Fla. The amendment to subsection (l)(d) was held unconstitutional. See Page v. State, 677 So. 2d 55, 56 (Fla. 1st DCA), approved on other grounds, Page v. State, 684 So. 2d 817 (Fla.1996). In 1992, this Court held that section 924.07 did not authorize an appeal from an order denying restitution. See State v. MacLeod, 600 So. 2d 1096 (Fla.1992). T…
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Page v. State, 684 So. 2d 817 (Fla. 1996)…. denied, — U.S. —, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), APPLY TO “PIPELINE CASES,” THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT REVIEW OR OTHERWISE NOT YET FINAL WHEN THE OPINION WAS RELEASED? Page v. State, 677 So. 2d 55, 56 (Fla. 1st DCA 1996).1 We have, jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answered this question in Boyett v. State, No. 81,971, — So. 2d — [1996 WL 693616] (Fla. Dec. 5, 1996). We acknowledged there that we had incorrectly accepted the St…
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Lookadoo v. State, 737 So. 2d 637 (Fla. 5th DCA 1999)…o Walker v. Bentley, 678 So. 2d 1265 (Fla.1996) (statute providing that indirect criminal contempt may not be used to enforce compliance with injunc [*639] tions against domestic violence violates constitutional separation of powers); Page v. State, 677 So. 2d 55 (Fla. 1st DCA), approved on other grounds, 684 So. 2d 817 (Fla.1996) (statute which requires appellate courts to rule on a question of law raised by the state on cross-appeal regardless of the disposition of the defendant’s appeal violates separatio…
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
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- Alfredco Lett v. State, 668 So. 2d 1094 (Fla. 1st DCA 1996)
- Walker v. State, 459 So. 2d 333 (Fla. 3d DCA 1984)