Dante v. State, 3D03-3239.
Decision Date | 08 June 2005 |
Docket Number | No. 3D03-3239.,3D03-3239. |
Citation | 903 So.2d 293 |
Parties | William A. DANTE, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
ON MOTION FOR REHEARING
Upon consideration of the state's motion for rehearing, we withdraw our previously issued opinion dated March 23, 2005, and substitute the following.
The defendant, William A. Dante, appeals from a final judgment of conviction and sentence. We affirm.
The defendant was charged with one count of escape, a second degree felony; one count of battery on a law enforcement officer, a third degree felony; and one count of resisting an officer without violence, a first degree misdemeanor. During jury selection, when the prosecutor exercised his third peremptory strike, he stated that the Shortly thereafter, when defense counsel sought to exercise his fourth peremptory challenge on prospective juror Aarestrup, the trial court stated, "Okay, you had your three." Defense counsel responded, "Then there is nothing to argue about I am sorry." Both sides announced that they accepted the jury and the jury was sworn with Aarestrup sitting on the jury.
The jury found the defendant guilty of escape and resisting an officer without violence and not guilty of battery on a law enforcement officer.
The defendant seeks a new trial arguing that, pursuant to Florida Rule of Criminal Procedure 3.350(a)(2), he was entitled to six, not three, peremptory challenges. In response, the state concedes that the defendant was entitled to six peremptory challenges, but asserts that this issue was not adequately preserved for appellate review, and therefore, this court must affirm.
Pursuant to Florida Rule of Criminal Procedure 3.350(a)(2), a defendant is entitled to six peremptory challenges if he is charged with a felony not punishable by death or imprisonment for life. Here, the defendant was charged with escape, a second degree felony, and battery on a law enforcement officer, a third degree felony. As these felonies are not punishable by death or life in prison, the defendant was clearly entitled to six peremptory challenges.
It is well-settled law that, Gilliam v. State, 514 So.2d 1098, 1099 (Fla.1987) (citation omitted) (quoting Jackson v. State, 464 So.2d 1181 (Fla.1985)). When a trial court improperly denies a defendant's request for a peremptory challenge and the issue is properly preserved for appellate review, reversal is therefore required. See Green v. State, 673 So.2d 937 (Fla. 1st DCA 1996); Smith v. State, 662 So.2d 1336 (Fla. 2d DCA 1995); Telemaque v. State, 591 So.2d 675 (Fla. 3d DCA 1991).
Verreautt, 411 So.2d at 234-35 (footnotes and citations omitted).
In Verreautt, we distinguished the trial court's mistaken belief that Verreautt was entitled to six peremptory challenges and Verreautt's failure to assert that he was entitled to more, from those situations in which the trial court rules that a defendant is only entitled to six peremptory challenges and despite defendant's assertions that he is entitled to more, refuses to excuse the challenged juror. See Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976) (, )cert. denied, 346 So.2d 1250 (Fla.1977); Newsome v. State, 355 So.2d 483 (Fla. 2d DCA 1978) ( ). "In the words of our Supreme Court, the appellants' attorneys were `not required to pursue a completely useless course when the judge had announced in advance that it would be fruitless.'" Bell, 338 So.2d at 1329 (quoting Bailey v. State, 224 So.2d 296 (Fla.1969)). Accord Birge v. State, 92 So.2d 819 (Fla.1957).
In Maio v. State, 531 So.2d 1055 (Fla. 3d DCA 1988), we affirmed the defendant's conviction for a life felony. A review of the record revealed that "defense counsel remained silent, not because it would have been futile to do otherwise, but because he mistakenly believed that six peremptory challenges were the limit and that he had already reached his limit." We concluded, therefore, that "the defendant's failure to object [was] fatal to his claim that he was deprived of the ten peremptory challenges to which he was concededly entitled." Maio, 531 So.2d at 1056-57.
A review of the record before us reflects a situation akin to that in Verreautt and Maio. While defense counsel did attempt to use a fourth peremptory challenge to strike juror Aarestrup, he withdrew his request because he mistakenly believed that the defendant was entitled to only three peremptory challenges. As defense counsel withdrew his peremptory challenge and accepted the jury without objection, we agree with the state and conclude that this issue was not preserved for appellate review. See Joiner v. State, 618 So.2d 174, 176 (Fla.1993) ( ); Enamorado v. State, 733 So.2d 1164, 1164 (Fla. 3d DCA 1999) () (citing Maio and Verreautt). We conclude, as did the Florida Supreme Court in Trotter v. State, 576 So.2d 691, 693 (Fla.1991), that "[t]he defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial."
While the defendant in this appeal did not preserve this issue for appellate review, he argues that this court should reverse and grant a new trial on the basis of ineffective assistance of counsel.
The defendant acknowledges that ineffective assistance of counsel claims are not usually reviewable on direct appeal, but asserts that when a claim of ineffective assistance of trial counsel is apparent on the face of the record, this issue may be reached on direct appeal. In Mizell v. State, 716 So.2d 829 (Fla. 3d...
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...(Fla. 4th DCA 2004)). However, when “the facts giving rise to such a claim are apparent on the face of the record,” Dante v. State, 903 So.2d 293, 296 (Fla. 3d DCA 2005) (quoting Mizell v. State, 716 So.2d 829, 830 (Fla. 3d DCA 1998)), the issue may be reached during the direct appeal. This......
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...for counsel's errors, there is a reasonable probability that the outcome of his trial would have been different." Dante v. State, 903 So.2d 293, 296-97 (Fla. 3d DCA 2005) (citing Valle v. State, 778 So.2d 960, 965-66 (Fla. 2001)). "The benchmark for judging any claim of ineffectiveness must......
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...probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different." Dante v. State, 903 So.2d 293, 296 (Fla. 3d DCA 2005)(quoting State v. Bodden, 756 So.2d 1111, 1113 (Fla. 3d DCA 2000)). See also Strickland v. Washington, 466 U.S. 668, 695......
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Buchanan v. State, 5D05-1797.
...the issue squarely before the trial court for resolution prior to the start of the jury selection process. Compare Dante v. State, 903 So.2d 293 (Fla. 3d DCA 2005)(holding that defendant failed to preserve for appellate review his claim that the trial court erred by only allowing him only t......