JAMES MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Although appellant raises two issues in this direct criminal appeal, only one merits discussion. Relying on Coney v. State, 653 So. 2d 1009 (Fla.), cert. denied, — U.S. —, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), appellant asserts that he is entitled to a new trial because, although present in the courtroom during jury selection, he was not physically present at a bench conference during which jury challenges were exercised. However, the relevant portion of the record in this case is substantively identical to that in Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996) (Criminal Division en banc). Accordingly, as in Mathis, we hold that appellant has failed to carry his burden to establish the existence of reversible error by demonstrating, from the record, that he was not present at the bench conference during which challenges were exercised. Therefore, we affirm.
AFFIRMED.
MINER, WEBSTER and MICKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ellis v. State, 696 So. 2d 904 (Fla. 4th DCA 1997)…r, it is the appellant’s burden to demonstrate that he was not present at the site where juror challenges were exercised. See Faison v. State, 697 So. 2d 585 (Fla. 1st DCA 1997); Daniels v. State, 691 So. 2d 1139 (Fla. 1st DCA 1997); Moore v. State, 685 So. 2d 87 (Fla. 1st DCA 1996). Where the record is silent, we do not see how the appellant would ever be able to meet tMs burden. We find that the more prudent approach would be to keep the burden on the trial court and the State to show that the Coney requir…
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Daniels v. State, 691 So. 2d 1139 (Fla. 1st DCA 1997)…lish reversible error; when the record fails to support appellant’s allegation that he was absent from the bench when his counsel exercised peremptory challenges, appellant fails to show reversible error, even if Coney is applicable. Moore v. State, 685 So. 2d 87 (Fla. 1st DCA 1996) (holding same); see also Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996) (en banc). Nothing in the instant record establishes that Daniels was absent from the bench when his counsel exercised peremptory challenges. Daniels th…
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Carmichael v. State, 693 So. 2d 1141 (Fla. 1st DCA 1997)…e exercised. See also Daniels v. State, 691 So. 2d 1139 (Fla. 1st DCA 1997); McNabb v. State, 689 So. 2d 371 (Fla. 1st DCA 1997)(Coney argument rejected where record is insufficient to show that peremptory challenges were exercised); Moore v. State, 685 So. 2d 87 (Fla. 1st DCA 1996). We decline to address the remaining issue raised by appellant as it was not presented to the trial court and was thus not preserved for appellate review. AFFIRMED. ALLEN and PADOYANO, JJ., concur.…
Authorities Cited
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- Rickie Renoried Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996)