DAVID P. CARMICHAEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Carmichael was convicted of felony DUI and challenged his conviction on the grounds that he was not physically present at a bench conference during jury selection where peremptory challenges were exercised. The Florida First District Court of Appeal affirmed the conviction, holding that Carmichael failed to meet his burden of establishing reversible error because the record did not show that defense counsel exercised any peremptory challenges.
Carmichael's conviction is affirmed. Where defense counsel does not exercise any peremptory challenges, there is no basis for reversal under Coney, and Carmichael failed to carry his burden of establishing reversible error by demonstrating from the record that he was absent when peremptory challenges were actually exercised.
[1] A defendant's absence from a bench conference during jury selection does not warrant reversal if the record fails to demonstrate that defense counsel exercised peremptory…
[2] The burden is on the defendant to establish the existence of reversible error on appeal.
Previewing 2 of 3 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“Where defense counsel does not exercise any peremptory challenges, there is no basis for reversal under Coney.”
Establishes the key limitation on Coney's requirement: the defendant's presence is only required when peremptory challenges are actually exercised.
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Join FLexlaw to unlock all legal intelligenceCarmichael was present in the courtroom during jury voir dire, but was not physically present at an unreported bench conference where jury challenges …
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MICKLE, Judge.
Appellant challenges his conviction for felony DUI.
We affirm the conviction and sentence in all respects and write only to address the single point which we believe warrants 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 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. The transcript of the voir dire proceedings reflects that, after the attorneys completed their questioning, the jury was selected at an unreported bench conference. As it was not apparent from the transcript of voir dire whether appellant was present at the bench conference, or whether he conferred with counsel when any peremptory challenges were exercised, this court permitted supplementation of the record with a reconstruction of the jury selection bench conference proceedings.
The record was thereafter supplemented with an order of the trial judge finding that appellant was not physically present at the bench conference during the jury challenging procedures but that appellant was in the courtroom and had previously conferred with counsel prior to the challenging procedure.
Where defense counsel does not exercise any peremptory challenges, there is no basis for reversal under Coney. See Ganyard v. State, 686 So. 2d 1361 (Fla. 1st DCA 1996). The burden is on appellant to establish the existence of reversible error. Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996). Herein, the record fails to show that peremptory challenges were exercised by defense counsel.
Hence, as in Mathis v. State, 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 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 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.
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Citator
Cited By
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Carmichael v. State, 715 So. 2d 247 (Fla. 1998)…SHAW, Justice. We have for review Carmichael v. State, 693 So. 2d 1141 (Fla. 1st DCA 1997), based on conflict with Ellis v. State, 696 So. 2d 904 (Fla. 4th DCA 1997). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result in Carmichael as explained herein. David Carmichael was charged with driving…
Authorities Cited
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- Ozell McNABB v. State, 689 So. 2d 371 (Fla. 1st DCA 1997)
- White v. State, 689 So. 2d 371 (Fla. 2d DCA 1997)
- Ganyard v. State, 686 So. 2d 1361 (Fla. 1st DCA 1996)
- Rickie Renoried Mathis v. State, 683 So. 2d 582 (Fla. 1st DCA 1996)
- Daniels v. State, 691 So. 2d 1139 (Fla. 1st DCA 1997)
- Moore v. State, 685 So. 2d 87 (Fla. 1st DCA 1996)
- Frazier v. State, 685 So. 2d 87 (Fla. 1st DCA 1996)