ISIAIH NEAL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a defendant's failure to timely raise the issue of not being present at bench during jury challenges, combined with the defendant's presence in the courtroom and failure to object, constitutes a waiver of the right to be present at the bench. The court affirmed the conviction, finding no error despite the defendant not being at the bench during jury selection.
The defendant is not entitled to a new trial. Although a defendant has a right to be present at the bench during jury challenges under Coney v. State, that right must be timely raised. Here, Neal's failure to object while present in the courtroom, despite ample notice of the Coney ruling, constitutes a waiver of the right.
[1] A defendant must timely raise the issue of their right to be present at the bench during pretrial juror challenges.
[2] A defendant's right to be present at the bench during pretrial juror challenges, as established in Coney v. …
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes that defendants have a constitutional or procedural right to be present at bench conferences during jury selection under Coney.
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Join FLexlaw to unlock all legal intelligenceIsiaih Neal was charged with second-degree murder. During jury selection on June 7, 1995, the judge conducted voir dire and exercised juror challenges…
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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, where several juror challenges were exercised. Although Neal was present in the courtroom, the record fails to show that he was at the bench during the juror challenges. He was convicted of manslaughter and the district court affirmed. He now claims that he is entitled to a new trial because he was not present at the bench when the jury was selected. We disagree.
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 exer cised.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 case, although Neal 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 Neal being present at the bench. We note that our decision in Coney had been issued months earlier, giving Neal ample notice of the existence of this right. We find no error. We approve the result in Neal as explained above.
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 Rules 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.
PARIENTE, Justice,
concurring in 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lamarca v. State, 931 So. 2d 838 (Fla. 2006)…plied to La-marca’s case, Lamarca would still not be entitled to relief. Neither Lamarca nor his trial counsel timely objected to his absence at the sidebar; therefore, he has not established that his right to be present was violated. Neal v. State, 713 So. 2d 1002, 1003 (Fla.1998) (denying defendant’s claim that Coney entitled him to a new trial because neither “he [n]or his lawyer expressed any interest in [the defendant] being present at the bench” during jury challenges). In summary, Lamarca’s claim that…
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)
- State v. Brower, 713 So. 2d 1005 (Fla. 1998)
- Capozzi v. State, 697 So. 2d 941 (Fla. 2d DCA 1997)
- Isiaih Neal v. State, 697 So. 2d 941 (Fla. 2d DCA 1997)