Cole v. State

• Court: Florida District Court of Appeals
• Writing for the Court: Before HENDRY; PER CURIAM
• Citation: Cole v. State, 199 So.2d 480 (Fla. App. 1967)
• Decision Date: 31 May 1967
• Docket Number: No. 66--524,66--524
• Parties: Joseph COLE, Appellant. v. The STATE of Florida, Appellee.

Page 480

199 So.2d 480

Joseph COLE, Appellant. v. The STATE of Florida, Appellee.

No. 66--524.

District Court of Appeal of Florida, Third District.

May 31, 1967.

Rehearing Denied June 26, 1967.

Donald F. Frost, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for appellee.

Before HENDRY, C.J., and PEARSON and CHARLES CARROLL, JJ.

PER CURIAM.

Appellant seeks reversal of an order of the criminal court of record denying his motion for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix after an evidentiary hearing. This is a third appearance of this matter here. On March 9, 1965, this court affirmed the conviction of the appellant of the crimes of receiving and of concealing stolen property. Cole v. State, Fla.App.1965, 172 So.2d 898. Thereafter the defendant filed a motion in the trial court for relief from the judgment of conviction under Criminal Procedure Rule 1. He appealed to this court from an order summarily denying the motion. We reversed, and remanded for an evidentiary hearing on the motion. Cole v. State, Fla.App.1966, 181 So.2d 698. After an evidentiary hearing the trial court again denied the defendant's motion, and this appeal followed.

The ground of the defendant's Rule 1 motion with which this appeal is concerned was that 'Testimony was taken while appellant was involuntarily absent from court.' In the order appealed from the court found: 'That the defendant, Joseph Cole, knowingly acquiesced in his attorney's actions in having the Defendant excluded from the court room during portions of the trial involving the issue of insanity.'

The record reveals that the defendant was excluded from the court room while certain testimony was being given by his mother and by a doctor relating to his mental condition, and that such was done at the instance and request of the defendant's attorney on the expressed theory that it was in the defendant's interest that he not be present when such testimony was presented.

At the evidentiary hearing on the Rule 1 motion, on the issue of whether the defendant knowingly waived his right to be present at such times, or knowingly acquiesced in being absent, the evidence was not without conflict but there was ample evidence to support the above quoted finding of the trial judge.

The requirement of § 914.01 Fla.Stat., F.S.A., that 'In all prosecutions for a felony the defendant shall be present: * * * (4) At all proceedings before the court when the jury is present,' is mandatory, and is equally applicable in such ...