Lett v. State, 94-4211

• Decision Date: 05 March 1996
• Docket Number: No. 94-4211,94-4211
• Parties: 21 Fla. L. Weekly D580 Alfredco LETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1094

668 So.2d 1094

21 Fla. L. Weekly D580

Alfredco LETT, Appellant, v. STATE of Florida, Appellee.

No. 94-4211.

District Court of Appeal of Florida,

First District.

March 5, 1996.

An appeal from the Circuit Court for Escambia County. T. Michael Jones, Judge.

Nancy A. Daniels, Public Defender; Raymond Dix, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Patrick Martin, Assistant Attorney General, Tallahassee, for Appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing and, grant, in part, and deny, in part, the motion for certification filed by appellant, Alfredco Lett; withdraw our previous opinion filed in this cause; and substitute the following opinion. Appellant's motion for rehearing en banc is denied.

Alfredco Lett appeals his conviction for aggravated assault and aggravated battery, arguing that the trial court erred in denying Lett's motion for judgment of acquittal and that he is entitled to a new trial under Coney v. State, 653 So.2d 1009 (Fla.1995), because the record does not reflect that he was present at bench conferences during voir dire. We affirm, but certify a question of great public importance.

With respect to the first issue raised by Lett, we agree with the trial court that the unrebutted victim's testimony alone provided sufficient evidence to submit the charges to the jury.

With respect to his second issue, even if we assume the record reflects that Lett was not present at voir dire bench conferences, ¹ Coney does not require a new trial here. The Coney opinion specifically limits its holding that the "defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised" to "prospective" application. Id. at 1013. The question presented here is whether the supreme court in Coney intended "prospective" application to exclude the application of the Coney decision to defendants in so-called "pipeline" cases; that is, to defendants, such as the defendant in the instant case, whose cases were pending on direct review or not yet final at the time of the issuance of the Coney decision.

The state argues that the supreme court's use of "prospective" in prior cases precludes the application of Coney to pipeline cases. See, Fenelon v. State, 594 So.2d 292, 293, 295 (Fla.1992) ("We agree with the State that giving the flight instruction, even if erroneous, was harmless beyond a reasonable doubt....," and "we approve the result below although we direct that henceforth the jury instruction on flight shall not be given."); and Taylor v. State, 630 So.2d 1038, 1042 (Fla.1993) ("This Court intended that the holding in Fenelon be applied prospectively only, and, since Taylor was tried before our decision in Fenelon was issued, the trial court did not err given the circumstances of this case."). Lett, on the other hand, argues that to exclude pipeline cases from Coney's application would conflict with Smith v. State, 598 So.2d 1063, 1066 (Fla.1992), where the court held that:

[A]ny decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final. Art. I, §§ 9, 16 Fla. Const.

(Footnote omitted).

However, in Wuornos v. State, 644 So.2d 1000 (Fla.1994), the court addressed this apparent conflict between its holding in Smith and its rulings in cases in which the court has specified prospective application. In Wuornos, the court ruled that its holding in Castro v. State, 597 So.2d 259 (Fla.1992), recognizing a new jury instruction requirement, "was intended to have prospective effect only...." Wuornos, 644 So.2d at 1007. In a footnote, the court:

Recognize[d] that this holding may seem contrary to a portion of Smith v. State [citation omitted], which can be read to mean that any new rule of law announced by this Court always must be given retrospective...