ADRIAN DANIELS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that an appellant must establish reversible error by showing the record supports their claim of absence from jury selection.
Adrian Daniels was convicted of resisting arrest with violence and possession of cannabis. He appealed, claiming he was denied his right to be present…
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LAWRENCE, Judge.
Adrian Daniels (Daniels) directly appeals his conviction and sentence, raising one issue — that he was denied his right, pursuant to Coney v. State, 653 So. 2d 1009 (Fla.), cert. denied, — U.S. —, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), to be present at the bench when his jury was selected. We affirm.
Daniels was found guilty of resisting arrest with violence and possession of cannabis, committed on February 8, 1995, in Franklin County. The trial judge sentenced Daniels, as an habitual offender, to eight years in prison and one concurrent year in county jail, as well as costs.
The jury tried Daniels on August 24,1995. The Coney opinion was released on January 5, 1995, and was superseded in Amendments to Florida Rules of Criminal Procedure, 685 So. 2d 1253, 1254 n. 2 (Fla.1996). The amendment superseding Coney is effective January 1, 1997, at 12:01 a.m. Amendments, 685 So. 2d at 1255. Daniels thus was tried in the Coney window. Our precedent nevertheless precludes Daniels’ requested relief. The burden is on an appellant to establish 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 thus fails to show error. We therefore affirm Daniels’ conviction and sentence.
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)…it is the appellant’s burden to show reversible error, 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 tria…
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Carmichael v. State, 693 So. 2d 1141 (Fla. 1st DCA 1997)…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 peremptory challenges were 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 addr…
Authorities Cited
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- Amendments TO THE Florida Rules OF Criminal Procedure, 685 So. 2d 1253 (Fla. 1996)
- Rickie Renoried Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996)
- Moore v. State, 685 So. 2d 87 (Fla. 1st DCA 1996)
- Frazier v. State, 685 So. 2d 87 (Fla. 1st DCA 1996)