CARY BRANTLEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Cary Brantley appeals his second-degree murder conviction and sentence. The court affirmed the conviction, finding any error from defendant's absence during jury instructions to be harmless, but reversed the sentence due to the trial court's erroneous reliance on an unproven prior conviction in calculating the sentencing scoresheet.
The court held that any error from defendant's absence during jury instructions was harmless beyond a reasonable doubt where the prosecutor and defense counsel were present and stipulated to the court's response. However, the court reversed the sentence because the trial court erroneously relied on an unproven prior conviction when the state failed to produce corroborating evidence of the conviction's accuracy.
[1] A defendant's absence from a courtroom during jury deliberations, where the judge responds to a jury question in the presence of both counsel but without the defendant, m…
[2] A defendant is not entitled to dual representation by counsel and by himself.
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“We hold that defendant's absence from the courtroom, if error, was harmless be yond a reasonable doubt.”
Establishes the court's holding that any error from defendant's absence during jury instructions is harmless beyond a reasonable doubt.
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Join FLexlaw to unlock all legal intelligenceDuring jury deliberations, the jury asked a question about the date of the crime and requested witness testimony. The trial court recalled the jury in…
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PER CURIAM.
Cary Brantley appeals from a judgment of conviction and sentence for second-degree murder. We affirm the conviction, reverse the sentence, and remand for resentencing.
After the jury had retired for deliberations, it informed the court that it had a question about the date of the crime and asked the court to provide the testimony of a witness. The trial court called the jury back into the courtroom in the presence of both the prosecutor and defense counsel and asked defense counsel whether he waived defendant’s presence. Defense counsel replied, “For the record I waive the presence of the defendant.” 1 For reasons not apparent from the record, defendant was not present in the courtroom at the time. Defense counsel and the prosecutor stipulated to the court’s answer to the question about the date of the crime. The court declined to provide the witness’ testimony. The jury then returned to the jury room to continue deliberations.
We hold that defendant’s absence from the courtroom, if error, was harmless be yond a reasonable doubt. See Meek v. State, 487 So. 2d 1058 (Fla.1986) (harmless error analysis applies when trial judge, during jury deliberations, responds to question in presence of both defense counsel and prosecutor, but in defendant’s absence); Stano v. State, 473 So. 2d 1282 (Fla.1985); cert, denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986); Junco v. State, 510 So. 2d 909 (Fla. 3d DCA), rev. denied, 518 So. 2d 1276 (Fla.1987).
As to defendant’s other challenges to his conviction, we find no merit. See Morgan v. State, 492 So. 2d 1072 (Fla.1986); Turner v. State, 431 So. 2d 328 (Fla. 3d DCA), rev. denied, 438 So. 2d 834 (Fla.1983); DeCastro v. State, 360 So. 2d 474 (Fla. 3d DCA 1978), cert. denied, 368 So. 2d 1365 (Fla.1979).
Although we affirm the conviction, we reverse the sentence imposed and remand for resentencing. The state properly concedes that the trial court erred in relying on an unproven conviction when completing the sentencing scoresheet. “[WJhen the state offers prior convictions of disputed accuracy, the state must produce corroborating evidence.” Morgan v. State, 550 So. 2d 151, 153 (Fla. 3d DCA 1989) (citations omitted). The state failed to present such evidence; the scoresheet was therefore erroneously calculated, and the defendant’s sentence must be reversed.
Affirmed in part, reversed in part, and remanded.
. Before trial, defendant had filed a pro se motion asking the court not to honor any waivers of his presence made by his counsel without his express oral or written permission. The record does not indicate whether the trial court ever ruled on this motion or whether the defendant’s attorney was even aware of the motion. However, the law is well-settled that a defendant is not entitled "to representation both by counsel and by himself.” State v. Tait, 387 So. 2d 338 (Fla.1980). Furthermore, "[t]here is no reason why our system must tolerate dual pleadings filed by both the defendant’s attorney and the defendant himself ... such filings should be treated as nullities.” Smith v. State, 444 So. 2d 542, 547 (Fla. 1st DCA 1984) (emphasis in original).
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Febles v. State, 654 So. 2d 615 (Fla. 3d DCA 1995)…but remand that count for resentencing upon production of evidence of the nature of the federal conviction and its conversion into an equivalent Florida score, necessary for a proper determination of the appellant’s sentence. See Brantley v. State, 570 So. 2d 364 (Fla. 3d DCA), dismissed, 576 So. 2d 285 (Fla.1990); Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989). We affirm the appellant’s remaining convictions. Accordingly, we affirm in part, reverse in part and remand.…
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Elvin Richard Thompson v. State, 585 So. 2d 1130 (Fla. 3d DCA 1991)…2d 1165 (Fla. 1st DCA 1987), aff'd, 526 So. 2d 682 (Fla.1988); Mize v. State, 495 So. 2d 845 (Fla. 3d DCA 1986). Moreover, only such prior convictions as are determined valid and appropriate by the trial court shall be scored. See Brantley v. State, 570 So. 2d 364 (Fla. 3d DCA 1990), cause dismissed, 576 So. 2d 285 (Fla.1990).…
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Ira Cliton Morris v. State, 701 So. 2d 1268 (Fla. 3d DCA 1997)…ccuracy of the prior convictions, recalculate the sentencing score-sheet if required, and if also required, resen-tence the defendant pursuant to the sentencing guidelines. See Thompson v. State, 585 So. 2d 1130 (Fla. 3d DCA 1991); Brantley v. State 570 So. 2d 364 (Fla. 3d DCA), cause dismissed, 576 So. 2d 285 (Fla.1990). Reversed and remanded.…
Authorities Cited
- Stano v. State, 473 So. 2d 1282 (Fla. 1985)
- State v. Tait, 387 So. 2d 338 (Fla. 1980)
- McKenna v. Nevada, 474 U.S. 1093 (U.S. 1986)
- State v. Thompson, 444 So. 2d 542 (Fla. 3d DCA 1984)
- Meek v. State, 487 So. 2d 1058 (Fla. 1986)
- Americo Junco and Ernesto R. Esquivel v. State, 510 So. 2d 909 (Fla. 3d DCA 1987)
- DeCASTRO v. State, 360 So. 2d 474 (Fla. 3d DCA 1978)
- State v. Hill, 492 So. 2d 1072 (Fla. 1986)
- Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989)
- Serita Turner v. State, 431 So. 2d 328 (Fla. 3d DCA 1983)