PAUL BURGESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Paul Burgess appeals his aggravated assault and battery convictions after the trial court's voir dire transcript was destroyed by Hurricane Georges and could only be partially reconstructed. The appellate court affirmed the convictions, finding that Burgess failed to identify any prejudicial error from voir dire and did not preserve objections to juror acceptance.
The court affirmed Burgess's convictions, holding that not all omissions of transcript result in reversal and that the missing portions of the voir dire transcript were not necessary for complete appellate review where the appellant failed to identify any prejudicial error and did not preserve objections to jurors.
[1] A conviction will not be reversed due to a missing portion of the trial transcript if the missing portion is not necessary for a complete review of the case.
[2] A defendant must exhaust all peremptory challenges to preserve an objection to the failure to excuse a juror for cause.
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“not all omissions of transcript result in reversal for a new trial”
Establishes the governing legal principle that missing transcripts do not automatically require reversal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe court reporter's notes from the voir dire portion of Burgess's trial were destroyed by Hurricane Georges. The trial court held a hearing to recons…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Challenge For Cause cases and more on FLexlaw
PER CURIAM.
We affirm appellant’s convictions for aggravated assault and battery and write to address one issue raised on appeal.
The court reporter’s notes from the voir dire portion of the trial were destroyed by Hurricane Georges. The trial court held a hearing in an attempt to reconstruct the voir dire portion of the transcript. The court concluded “that the record has been reconstructed to [an] extent,” which was that 1) “the defendant testified that two jurors wanted to hear what he had to say;” 2) the trial judge instructed the jury that the defendant had the right to remain silent; and 3) the jurors indicated that they were able to follow the law.
This case is controlled by Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994). Velez argued that three errors occurred during voir dire for which a transcript was unavailable, due to the loss of the court reporter’s notes. Attempts to reconstruct this portion of the transcript were unsuccessful, but most of the voir dire and the trial were available. In affirming the conviction, this court observed that “not all omissions of transcript result in reversal for a new trial.” Id. at 44 (citations omitted). The court identified the central issue as whether the missing portions of the transcript “are necessary for a complete review” of the case. Id. Because the matters raised by the defendant in Velez could be disposed of as a matter of law, this court found that the missing portions of the transcript were not necessary for a full review of the case.
In this case, appellant has not identified any prejudicial error that occurred during the voir dire, in spite of testifying at the hearing that he had “an accurate recollection of what happened during the voir dire.” Appellant states in his brief that two jurors wanted to hear him testify and that the trial judge “instructed the panel on Appellant’s right not to testify.” Appellant does not contend that the trial court incorrectly instructed the jurors. Appellant does not argue that he was forced to accept any juror who said that he or she would like to hear him testify. Appellant used only two of the six peremptory challenges he had available; any objection to a failure to excuse jurors for cause was not preserved. E.g., Kearse v. State, 662 So. 2d 677, 683 (Fla.1995) (finding that in order to preserve challenge for cause “a defendant must exhaust all peremptory challenges.”) (citation omitted). Unlike Delap v. State, 350 So. 2d 462 (Fla.1977), this was not a first degree murder case involving imposition of the death penalty, where the supreme court has a constitutional duty to review the entire record of the conviction and the sentence of death.
AFFIRMED.
WARNER, C.J., STEVENSON and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cedrick Jones v. State, 923 So. 2d 486 (Fla. 2006)…new trial must be granted because his appellate counsel was unable to determine if prejudicial error occurred during jury selection. See Jones, 870 So. 2d at 904. The Fourth District rejected this argument, citing its decisions in Burgess v. State, 766 So. 2d 293 (Fla. 4th DCA 2000), and Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994), and this Court’s decision in Darling v. State, 808 So. 2d 145 (Fla.2002). Importantly, the district court determined that Jones conceded that he did not know if any errors a…
-
Cedrick Jones v. State, 870 So. 2d 904 (Fla. 4th DCA 2004)…record is incomplete and his appellate counsel is therefore unable to determine whether any prejudicial errors occurred during jury selection. Jones concedes he “does not know if errors occurred in voir dire.” The State argues that Burgess v. State, 766 So. 2d 293 (Fla. 4th DCA 2000), governs the outcome of this issue on appeal. In Burgess, we relied on our earlier holding in Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994), and denied a new trial because defendant had “not identified any prejudicial error…
-
Louisias v. State, 985 So. 2d 1181 (Fla. 3d DCA 2008)…trial must be granted because his appellate counsel was unable to determine if prejudicial error occurred. The Fourth District rejected this argument, citing to the Florida Supreme Court’s decision in Darling, and its decisions in Burgess v. State, 766 So. 2d 293 (Fla. 4th DCA 2000), and Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994). In affirming the Fourth District, the Florida Supreme Court noted that Jones had conceded that he did not know if any errors had actually occurred, and acknowledged clear pr…
Authorities Cited
- Kearse v. State, 662 So. 2d 677 (Fla. 1995)
- Delap v. State, 350 So. 2d 462 (Fla. 1977)
- Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994)