MICHAEL BARYCHKO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
We affirm appellant’s conviction and sentence without prejudice to appellant’s right to seek post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure.
AFFIRMED.
DELL and PARIENTE, JJ., concur. GROSS, J., concurs specially with opinion.
GROSS, Judge,
concurring.
I concur in the affirmance in this case. Appellant’s trial counsel did not preserve his objection to the seating of the alternate juror. The issue as to the use of the codefend-ant’s statement was well argued by appellate counsel. However, a close examination of the record demonstrates that the trial court carefully and correctly resolved this issue after an overnight recess and a chance to examine the transcript. Trial counsel opened the door to the use of the statement during his crossexamination. The prosecutor’s use of the statement during closing argument was not preserved by a timely objection and I do not find the error to be fundamental.
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