JOSEPH LEE BIVINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Lee Bivins appeals his conviction for rape and false imprisonment, challenging the exclusion of spectators during trial, his denial of concluding argument, and the validity of the rape verdict. The Fourth District Court of Appeal affirmed his convictions, finding no constitutional violation and treating procedural irregularities as harmless error or waived.
The court held that exclusion of spectators due to disruption does not violate the public trial guarantee so long as a reasonable portion of the public is allowed to attend; that Bivins waived any objection to the trial procedure by not objecting at trial; and that any procedural departure regarding the verdict was harmless error or waived by Bivins's failure to timely object.
[1] A trial court may exclude spectators from a trial to protect a witness, regardless of the witness's age.
[2] The constitutional requirement of a public trial is satisfied if a reasonable portion of the public is permitted to attend, even if those with only prurient curiosity are…
Previewing 2 of 5 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“The constitutional requirement is fairly observed, if, without partiality or favoritism, a reasonable portion of the public is suffered to attend, notwithstanding that those persons whose presence would be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.”
Establishes the test for whether exclusion of spectators violates the public trial guarantee—a reasonable portion must be allowed to attend, but those motivated only by curiosity may be excluded.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBivins was tried before a jury on rape and false imprisonment charges. During trial, after nine witnesses testified and the prosecutrix (over 16 years…
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WOODSON, J. WILLIAM, Associate Judge.
The appellant was tried before a jury on two counts, rape and false imprisonment. There was some disturbance by outburst of small children during trial after nine witnesses had testified and prosecutrix, who was over 16 years of age, was beginning her testimony. State moved to exclude all spectators. Court excluded all spectators except those authorized under F.S. 801.231.
The appellant maintains he was denied a public trial, in violation of the Florida Constitution and the Federal Constitution; we think not. If the trial court can exclude a portion of the public if the witness is under 16 years of age, it can exclude that same portion of the public if the witness is over 16 years of age. The age of the prosecutrix is not the determining factor in whether or not the trial is public. The Supreme Court of Florida stated in the decision of Robertson v. State, 64 Fla. 437, 60 So. 118 (1912)
“The word ‘public ’ as used in the Constitution guaranteeing to all persons accused of crime a public trial, is there used in opposition to 'secretThe constitutional requirement is fairly observed, if, without partiality or favoritism, a reasonable portion of the public is suffered to attend, notwithstanding that those persons whose presence would be of no service to the accused, and who would only be drawn thither by a prurient curiosity, .are excluded altogether.”
The appellant’s Point II on appeal was that he offered no testimony in his own behalf except his own, and was denied concluding argument before the jury.
The procedure was announced in advance by the trial judge and the appellant having not objected to the procedure at the trial level waives that objection.
The appellant cites as his Point III on appeal, the judgment adjudicating appellant guilty of rape is invalid because there was no valid verdict of guilty of rape; we think not.
When the jury returned and the verdict forms were handed to the clerk, the clerk announced that the jury found the co-defendant guilty of rape and false imprisonment and the appellant guilty of false imprisonment. The jury was then polled as to their verdict and each announced in the affirmative that these were their verdicts. The court then announced that the appellant, Joseph Lee Bivins, was found guilty of Count I-rape and was adjudicated guilty of rape. The court announced that the appellant has been found guilty of Count II-false imprisonment and was adjudicated guilty of false imprisonment. The court then proceeded with his co-defendant as to his guilt on both charges.
The verdict slips were delivered in the presence of a jury, the court adjudicated the appellant guilty in the presence of the jury on both, counts and there was no objection by any juror of the verdicts.
The appellant made no objection to the adjudication by the trial judge.
We think any departure from the procedural requirements was harmless error and was waived by the appellant by not making timely objections.
Affirmed.
OWEN, C. J., and CROSS, J., concur.
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Cabrales G. Rodriguez v. State, 424 So. 2d 892 (Fla. 3d DCA 1982)…f a victim in a prosecution for aggravated assault and sexual battery, a portion of the public from the courtroom during her testimony.2 Douglas v. State, 328 So. 2d 18 (Fla.1976); Robertson v. State, 64 Fla. 437, 60 So. 118 (1912); Bivins v. State, 313 So. 2d 471 (Fla. 4th DCA 1975). Therefore, the conviction, adjudication and sentence are affirmed, except that portion retaining jurisdiction over the first one-third of the life sentence, which is hereby stricken. Corero-Pena v. State, 421 So. 2d 661 (Fla. 3…
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- Robertson v. State, 64 Fla. 437 (Fla. 1912)