WAYNE SMELLIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wayne Smellie appealed his convictions for robbery with a weapon, attempted robbery with a weapon, assault, criminal mischief, and leaving the scene of an accident, raising four challenges including peremptory challenges, continuance denial, cross-examination of suppressed statements, and hearsay rulings. The court affirmed the conviction, finding no abuse of discretion on the issues raised.
The court found no abuse of discretion on points two and four. On point one, the court held that the State's filing of notice to seek habitual offender enhancement prior to jury selection does not increase the number of peremptory challenges, which are determined by the statutory maximum for the charged offense without enhancement. On point three, the issue was not preserved because defense counsel failed to object on voluntariness grounds and therefore did not present a fundamental error.
[1] A defendant is not entitled to additional peremptory challenges based on the State's notice of intent to seek habitual offender status when the charged offense is not oth…
[2] The statutory number of peremptory challenges is determined by the punishment for the offense as charged, without regard to potential habitual offender enhancements.
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Join FLexlaw to unlock all legal intelligence“The state and the defendant shall each be allowed the following number of peremptory challenges: (1) Ten, if the offense charged is punishable by death or imprisonment for life. (2) Six, if the offense charged is a felony not punishable by death or imprisonment for life.”
Establishes the statutory framework for peremptory challenges based on offense charged
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Join FLexlaw to unlock all legal intelligenceSmellie was convicted of robbery with a weapon, attempted robbery with a weapon, assault, criminal mischief, and leaving the scene of an accident. At …
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STEVENSON, Judge.
The appellant, Wayne Smellie, was convicted and sentenced for the crimes of robbery with a weapon, attempted robbery with a weapon, assault, criminal mischief and leaving the scene of an accident. On appeal, he raises four challenges to his conviction: (1) the trial court’s ruling limiting him to only six peremptory challenges, (2) the trial court’s ruling denying his motion for continuance for the purpose of retaining private counsel, (3) the trial court’s ruling permitting the prosecutor to cross examine him regarding statements that he made to police at the time of his arrest, but which had been suppressed pursuant to stipulation of the parties, and (4) the trial court’s ruling on a hearsay objection. We find no abuse of discretion with regard to the issues raised in points two and four. As to issues one and three, while we find that neither alleged error requires reversal of Smellie’s convictions, we write to briefly address each.
As to the first issue, section 913.08(1), Florida Statutes (1997), provides in relevant part: The state and the defendant shall each be allowed the following number of peremptory challenges:
(1) Ten, if the offense charged is punishable by death or imprisonment for life.
(2) Six, if the offense charged is a felony not punishable by death or imprisonment for life.
(3) Three, for all other offenses.
See also Fla. R.Crim. P. 3.350(a). Smellie argues that, since at the time of jury selection the State had already filed notice of its intent to have him declared an habitual felony offender, the offense with which he was charged — robbery with a weapon, a first degree felony — became punishable by life imprisonment and, therefore, that he was entitled to ten peremptory challenges. We agree with Inmon v. State, 383 So. 2d 1103 (Fla. 2d DCA), review denied, 389 So. 2d 1111 (Fla.1980), which held that the State’s filing of its notice of intent to seek an habitual offender sentence enhancement prior to trial does not serve to increase the number of peremptory challenges a defendant would otherwise be permitted based on the “offense charged.” Appellant’s interpretation of the statute would lead to the incongruous result of allowing a defendant whose notice to ha-bitualize was filed prior to jury selection ten peremptory challenges, while a defendant facing the same permissible life sentence whose notice is filed at a later stage of the proceeding would only have six. We interpret section 913.08(l)(a)’s reference to the punishment for the “offense charged” to pertain to the statutory maximum for the charged offense without habitual offender enhancement.
As to point three, challenging the State’s use of appellant’s suppressed statement to impeach his trial testimony, we find that the issue raised on appeal was neither preserved nor fundamental. Nowhere during a twelve-page bench conference did defense counsel even suggest that the statements that Smellie made to police were involuntary and, therefore, could not be used at trial, even for impeachment purposes. Not only did this failure to object on “voluntariness” grounds deprive the trial court of an opportunity to rule on the issue, but it also deprived the State of the chance to put on evidence that the statements were not sufficiently coerced so as to render them involuntary. Thus, we decline appellant’s invitation to reverse his conviction on this ground.
In sum, we find no merit in the issues raised on appeal. Accordingly, we affirm.
GUNTHER and WARNER, JJ., concur.
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COX v. State, 764 So. 2d 711 (Fla. 1st DCA 2000)…argument raised by appellant on this point has been considered and rejected by the second, third, and fourth district courts of appeal. See Whitaker v. State, — So. 2d —, 1999 WL 510773 (Fla. 3d DCA 1999)[24 Fla. L. Weekly D1692]; Smellie v. State, 720 So. 2d 1131 (Fla. 4th DCA 1998); Inmon v. State, 383 So. 2d 1103 (Fla. 2d DCA), review denied, 389 So. 2d 1111 (Fla.1980). In each of the cited cases, the defendant maintained that because he was charged with a first degree felony which became punishable by lif…
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Buchanan v. State, 927 So. 2d 209 (Fla. 5th DCA 2006)…e is not seeking life in prison and I can tell you that I wouldn’t give him life in prison, therefore life — so based on that I am going to find that he is entitled to only six peremptories rather than ten. The court also cited to Smellie v. State, 720 So. 2d 1131 (Fla. 4th DCA 1998) to support its ruling. In Smellie, the Fourth District held that State’s pre-trial filing of its notice of intent to seek habitual offender sentencing did not entitle the defendant to receive ten peremptory challenges. We must de…1 / 2
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Joenathan Wright v. State, 731 So. 2d 867 (Fla. 3d DCA 1999)…PER CURIAM. Affirmed. See Robinson v. State, 692 So. 2d 883, 886 (Fla.1997); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Hooper v. State, 476 So. 2d 1253, 1256 (Fla.1985); Smellie v. State, 720 So. 2d 1131, 1132 (Fla. 4th DCA 1998); State v. Meyers, 708 So. 2d 661, 663 (Fla. 3d DCA 1998).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Inmon v. State, 383 So. 2d 1103 (Fla. 2d DCA 1980)