WAYNE STEINARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wayne Steinard appealed his aggravated assault conviction, challenging the admission of character evidence and the trial court's failure to ensure his presence during peremptory challenges. The court affirmed the conviction but struck two probation conditions that were not orally pronounced at sentencing.
The conviction is affirmed because no contemporaneous objection was made regarding the peremptory challenge issue at trial, and the character evidence claim was not erroneous. However, two special probation conditions must be stricken because they were not orally pronounced at sentencing.
[1] A defendant's right to be physically present at the exercise of peremptory challenges can only be raised on direct appeal if a contemporaneous objection was made at trial…
[2] Special conditions of probation that are not orally pronounced at sentencing must be stricken from the probation order.
Previewing 2 of 4 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“a defendant must be "physically present at the immediate site where pretrial juror challenges are exercised," unless the defendant waives this right”
Establishes the Coney standard requiring defendant presence or waiver during peremptory challenges
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Join FLexlaw to unlock all legal intelligenceSteinard was convicted of aggravated assault with a deadly weapon. At trial, the court exercised peremptory challenges without demonstrating on the re…
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BLUE, Judge.
Wayne Steinard challenges his conviction for aggravated assault -with a deadly weapon, contending the trial court erred in allowing improper character evidence and in failing to assure his presence or his waiver of presence during the exercise of peremptory challenges. We affirm Steinard’s conviction based on our determination that neither of these issues constitute error, although the peremptory challenge issue merits discussion. We agree with Steinard that two conditions should be stricken from the probation order because the conditions were not orally pronounced at sentencing.
Steinard asserts the trial court erred by failing to demonstrate on the record that he was physically present for the exercise of peremptory challenges. See Coney v. State, 653 So. 2d 1009, 1013 (Fla.1995) (holding a defendant must be “physically present at the immediate site where pretrial juror challenges are exercised,” unless the defendant waives this right). After the Coney decision, the supreme court amended Florida Rule of Criminal Procedure 3.180(b) to provide that “[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.” The State concedes, and we agree, that Coney applies in Steinard’s case because his trial occurred after Coney became final but before the effective date of the change to rule 3.180(b). Nevertheless, this court has consistently held that the failure to obtain a Coney waiver cannot be raised on direct appeal without a contemporaneous objection made at trial. See Neal v. State, 697 So. 2d 941 (Fla. 2d DCA), review granted, 701 So. 2d 868 (Fla.1997); Lee v. State, 695 So. 2d 1314 (Fla. 2d DCA), review granted, 700 So. 2d 686 (Fla. 1997). Because the record reveals no contemporaneous objection by Steinard on this issue, we affirm.
Steinard also asserts the trial court erred by imposing two special conditions of probation without oral pronouncement. He is correct. Condition twelve, requiring Stei-nard to pay for drug and alcohol testing and treatment, is a special condition not orally pronounced at sentencing; therefore, it must be stricken. See Smith v. State, 702 So. 2d 1305 (Fla. 2d DCA 1997). Condition thirteen, requiring Steinard to “waive extradition should a violation of supervision occur,” is also a special condition not orally pronounced at sentencing that must be stricken. See Smith, 702 So. 2d at 1306; McDaniels v. State, 679 So. 2d 840 (Fla. 2d DCA 1996).
Steinard’s conviction is affirmed; probation conditions twelve and thirteen are stricken.
ALTENBERND, A.C.J., and GREEN, J., concur.
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)…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, 718 So. 2d 171 (Fla.1998); McDaniels v. State, 679 So. 2d 840 (Fla. 2d DCA 1996); Reiter v. State, 674 So. 2d 189 (Fla. 2d DCA 1996). Thus both of these conditions must be stricken. [*958] However, condition (13), al…
Authorities Cited
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- LEE v. State, 695 So. 2d 1314 (Fla. 2d DCA 1997)
- Boynton v. State, 702 So. 2d 1305 (Fla. 3d DCA 1997)
- McDANIELS v. State, 679 So. 2d 840 (Fla. 2d DCA 1996)
- Capozzi v. State, 697 So. 2d 941 (Fla. 2d DCA 1997)
- Isiaih Neal v. State, 697 So. 2d 941 (Fla. 2d DCA 1997)