Golden v. State, 95-1908
| Decision Date | 20 February 1997 |
| Docket Number | No. 95-1908,95-1908 |
| Citation | 688 So.2d 419 |
| Parties | 22 Fla. L. Weekly D493 Frank GOLDEN, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Jean R. Wilson, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
ON MOTION FOR CLARIFICATION, MOTION FOR REHEARING, MOTION FOR REHEARING EN BANC AND MOTION TO CERTIFY
On appellant's motion for clarification, we withdraw our original opinion of November 19, 1996, and substitute the following opinion in its stead. The requests for rehearing and certification are otherwise denied.
Frank Golden, Jr., challenges his convictions and sentences for burglary of a dwelling, grand theft, and dealing in stolen property. We affirm in part, reverse in part, and remand as set forth below.
As appellant's first issue, he asserts that his absence from the sidebar conferences when peremptory challenges to the jury were exercised was reversible error where the trial court failed to make an affirmative determination as to whether he knowingly, intelligently, and voluntarily waived his presence at sidebar, or as to whether he voluntarily and intelligently ratified the jury chosen, as required by Coney v. State, 653 So.2d 1009 (Fla.1995), cert. denied, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995). The trial transcript reflects that appellant was in the courtroom during voir dire proceedings and that several bench conferences took place. However, because it was not apparent from the transcript whether appellant was physically present at the bench conferences, or whether he conferred with counsel when peremptory challenges were exercised, jurisdiction was relinquished in this cause for the purpose of supplementation of the record with a reconstruction of the bench conference proceedings. The reconstructed record filed with this court consists of affidavits executed by defense counsel and the prosecutor, and an order entered by the trial judge based upon these affidavits. In the order, the trial judge found that appellant was not present at sidebar for the exercise of peremptory challenges, but that, during the course of peremptory challenges, defense counsel consulted with appellant about which jurors would be challenged. Applying this court's harmless error analysis espoused in Mejia v. State, 675 So.2d 996...
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