SYLVESTER HAGINS, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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Sylvester Hagins was convicted of possession of a firearm by a convicted felon and sentenced to community control and probation. The court reversed and remanded because Hagins was not present during jury selection when peremptory challenges were exercised, and the trial court failed to certify that he waived this right or ratified the strikes, violating Florida Rule of Criminal Procedure 3.180.
A defendant has a right to be physically present at jury selection during peremptory challenges. If physical presence is impractical, the defendant may waive this right through counsel if the court certifies the waiver is knowing, intelligent, and voluntary, or may ratify strikes made in his absence if the court certifies his approval. The special probation condition requiring self-improvement programs was not statutorily authorized and must be orally pronounced at sentencing, not merely included in the written order.
[1] A defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised, unless impractical, in which case the defendant may…
[2] A waiver of the right to be present during jury challenges must be knowing, intelligent, and voluntary, certified by the court through proper inquiry.
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Join FLexlaw to unlock all legal intelligence“The defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised.”
Establishes the core holding regarding a defendant's right to presence during jury selection and peremptory challenges.
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Join FLexlaw to unlock all legal intelligenceSylvester Hagins was prosecuted for possession of a firearm by a convicted felon. During jury selection, peremptory challenges were exercised at a ben…
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POLEN, Judge.
Sylvester Hagins appeals from a final judgment convicting him of possession of a firearm by a convicted felon, and sentencing him to two years of community control fol lowed by eight years probation. The state concedes and we agree that reversal is required on the authority of Coney v. State, 653 So. 2d 1009 (Fla.1995), in which the supreme court held in pertinent part:
Florida Rule of Criminal Procedure 3.180 provides:
(a) Presence of the Defendant. In all prosecutions for crime the defendant shall be present:
(4) at the beginning of the trial during the ... challenging ... of the jury.
Fla.R.Crim.P. 3.180(a).1
We conclude that the rule means just what it says: The defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised. See Francis. [Francis v. State, 413 So. 2d 1175 (Fla.1982).] Where this is impractical, such as where a bench conference is required, the defendant can waive this right and exercise constructive presence through counsel. In such a case, the court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Alternatively, the defendant can ratify strikes made outside his presence by acquiescing in the strikes after they are made. See State v. Melendez, 244 So. 2d 137 (Fla.1971). Again, the court must certify the defendant’s approval of the strikes through proper inquiry. Our ruling today clarifying this issue is prospective only.
Id. at 1013. Coney compels reversal as Hag-ins was not present at the bench conference where the peremptory challenges were exercised, nor did the court certify that Hagins waived his counsel’s presence or ratified his actions.
We further address Hagins’s claim of eiTor with regard to the imposition of a special condition of probation requiring him to participate in self-improvement programs as determined by the court or probation officer, in the event the same condition is imposed if Hagins is convicted again. This condition is not statutorily authorized, nor contained within the general conditions in Florida Rule of Criminal Procedure 3.986, and thus must be orally pronounced at sentencing, rather than just included in the order of probation. State v. Hart, 668 So. 2d 589 (Fla.1996).
REVERSED AND REMANDED.
PARIENTE and SHAHOOD, JJ., concur. . Florida Rule of Criminal Procedure 3.180(b) has been amended effective January 1, 1997, to read:
A defendant is present for purposes of this rule if the defendant is physically in attendance for the courtroom proceeding, and has a meaningful opportunity to be heard through counsel on the issues being discussed.
In re Amendments to the Florida Rules of Criminal Procedure, 685 So. 2d 1253 (Fla.1996). In a footnote to this amendment, the court noted that the amendment superseded Coney. The amendment is not applicable to this case, however, as the offense and trial took place before the amendment took effect.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Queen v. State, 832 So. 2d 956 (Fla. 5th DCA 2002)…(10) is neither statutorily authorized nor contained within the general conditions or probation and thus it must be orally pronounced at sentencing to be validly imposed. § 948.03(1), Fla. Stat. (2000), Fla. R.Crim. P. 3.986(f). See Hagins v. State, 693 So. 2d 698, 699 (Fla. 4th DCA 1997). In addition, the state concedes that condition (12) must also be orally pronounced at sentencing because it is a special rather than a general condition. See Steinard v. State, 711 So. 2d 105, 106 (Fla. 2d DCA), rev. denied…
Authorities Cited
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- State v. Melendez, 244 So. 2d 137 (Fla. 1971)
- Amendments TO THE Florida Rules OF Criminal Procedure, 685 So. 2d 1253 (Fla. 1996)