STATE OF FLORIDA, PETITIONER,
v.
RICHARD BROWER, RESPONDENT
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The Florida Supreme Court reversed a district court decision that had overturned Richard Brower's conviction for first-degree murder and aggravated burglary based on his absence from a bench conference during jury selection. The Court held that Brower's failure to timely raise his right to be present at the bench constituted a waiver of that right.
The Court held that Brower waived any right to be present at the bench during jury selection by failing to timely raise the issue. Although Coney v. State established that defendants have a right to be present at bench conferences during juror challenges, Carmichael v. State required that this right be timely asserted. Since neither Brower nor his counsel expressed any interest in Brower being present at the bench, and Brower had notice of his rights from the earlier Coney decision, no error occurred.
[1] A defendant has a right to be present at the bench during the exercise of pretrial juror challenges.
[2] A defendant must timely raise the issue of their absence from the bench during jury selection.
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Join FLexlaw to unlock all legal intelligence“the defendant had a right to be present at the bench when pretrial juror challenges were exercised”
Establishes the general right to presence at bench conferences during jury selection under Coney v. State
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Join FLexlaw to unlock all legal intelligenceRichard Brower was charged with first-degree murder and aggravated burglary. During jury selection on June 5, 1995, the trial judge conducted a bench …
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SHAW, Justice.
We have for review Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996), based on conflict with Carmichael v. State, 715 So. 2d 247 (Fla.1998). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash Brower. Richard Brower was charged with first-degree murder and aggravated burglary. Following voir dire, the jury was selected at a bench conference on June 5, 1995, where several juror challenges were exercised. Although Brower was present in the courtroom during jury selection, he was not present at the bench. He was convicted as charged and the district court reversed because he was not present at the bench during jury selection. The State argues that the trial court did not err in selecting the jury. We agree.
This Court in Coney v. State, 653 So. 2d 1009, 1013 (Fla.1995), ruled that under our then-current rules of procedure, the defendant had a right to be present at the bench when pretrial juror challenges were exercised.1 We recently held in Carmichael v. State, 715 So. 2d 247 (Fla.1998), that the defendant must timely raise this issue. In the present ease, although Brower was present in the courtroom when the jury was selected, the record fails to show that either he or his lawyer expressed any interest in Brower being present at the bench. We note that our decision in Coney had been issued months earlier, giving Brower ample notice of the existence of this right. We find no error. We quash Brower. It is so ordered.
OVERTON, KOGAN and WELLS, JJ„ concur. PARIENTE, J., concurs in result only with an opinion.
HARDING, C.J., dissents with an opinion, in which ANSTEAD, J., concurs.
. Coney has since been superseded. See Amendments to Florida Rides of Criminal Procedure, 685 So. 2d 1253, 1254 n. 2 (Fla.1996) (“This amendment supersedes Coney v. State, 653 So. 2d 1009 (Fla.1995)."). Coney is applicable only to those cases falling within a narrow window — i.e.. where jury selection took place after April 27, 1995 (the date Coney became final), and before January 1, 1997 (the date the corrective amendment to rule 3.180 became effective). See State v. Mejia, 696 So. 2d 339 (Fla.1997); Amendments.
[*1006] PARIENTE, Justice,
concurring m result only.
I concur in the result only for the reasons stated in my concurrence in Carmichael v. State, 715 So. 2d 247 (Fla.1998). I add the caveat that an affirmance does not preclude the defendant from raising this issue by way of postconviction relief as suggested by Judge Altenbernd in his concurrence in Hill v. State, 696 So. 2d 798, 800 (Fla. 2d DCA), decision approved, 700 So. 2d 646 (Fla.1997).
HARDING, Chief Justice,
dissenting.
I dissent for reasons stated in my dissenting opinion in State v. Ellis, No. 91,154, — So. 2d — (Fla. July 9, 1998).
ANSTEAD, J., concurs.
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Brower v. State, 727 So. 2d 1026 (Fla. 4th DCA 1999)…STONE, C.J. In accordance with the supreme court’s opinion in State v. Brower, 713 So. 2d 1005 (Fla.1998), quashing our opinion of December 11, 1996, we adopt the supreme court’s opinion, affirm Appellant’s judgment and sentence on two counts of first-degree murder and one count of armed burglary, and address one additional issue raised conce…
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Isiaih Neal v. State, 713 So. 2d 1002 (Fla. 1998)…SHAW, Justice. We have for review Neal v. State, 697 So. 2d 941 (Fla. 2d DCA 1997), based on conflict with Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996), quashed, 713 So. 2d 1005 (Fla.1998). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result in Neal as explained below. Isiaih Neal was charged with second-degree murder. Following voir dire, the jury was selected at a bench conference on June 7, 1995,…
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LEE v. State, 713 So. 2d 1003 (Fla. 1998)…SHAW, Justice. We have for review Lee v. State, 695 So. 2d 1314 (Fla. 2d DCA 1997), based on conflict with Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996), quashed, 713 So. 2d 1005 (Fla.1998). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result in Lee as explained below. Timothy Lee was charged with the following offenses: escape while being transported, battery on a law enforcement officer, obstructing…
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)
- Carmichael v. State, 715 So. 2d 247 (Fla. 1998)
- State v. Mejia, 696 So. 2d 339 (Fla. 1997)
- Brower v. State, 684 So. 2d 1378 (Fla. 4th DCA 1996)
- Hill v. State, 696 So. 2d 798 (Fla. 2d DCA 1997)
- Hill v. State, 700 So. 2d 646 (Fla. 1997)