Miller v. State, 95-03338
| Decision Date | 15 November 1996 |
| Docket Number | No. 95-03338,95-03338 |
| Citation | 683 So.2d 600 |
| Parties | 21 Fla. L. Weekly D2464 Charles A. MILLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, and Dwight Wolfe, Assistant Public Defender, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellee.
Charles A. Miller appeals his conviction and sentence for aggravated stalking. We reverse the sentence because it was a departure from the sentencing guidelines without written reasons, but we certify a question to the Florida Supreme Court. Despite our concerns with the jury selection process in this case, we affirm the conviction.
Miller was sentenced to two years' community control, with one year in county jail as a condition, followed by two years' probation. Relying on State v. Davis, 630 So.2d 1059 (Fla.1994), Miller correctly contends that the combination of nonstate prison sanctions creates a departure sentence for which written reasons must be given. The sentencing judge did not enter written reasons for the imposition of this departure sentence. Therefore, we reverse and remand for resentencing. 1 However, we agree with the First and Fourth District Courts of Appeal that under the 1994 guidelines, a combination of nonstate prison sanctions may not create a departure sentence. See Simmons v. State, 668 So.2d 654 (Fla. 1st DCA), review granted, 676 So.2d 414 (Fla.1996); Marotto v. State, 674 So.2d 215 (Fla. 4th DCA 1996). Therefore, as did our sister courts, we certify the following question to the Florida Supreme Court:
IS THE RULE IN STATE v. DAVIS, 630 So.2d 1059 (Fla.1994), REQUIRING WRITTEN REASONS FOR DEPARTURE WHEN COMBINING NONSTATE PRISON SANCTIONS, APPLICABLE UNDER THE FLORIDA RULE OF CRIMINAL PROCEDURE 3.702 SENTENCING GUIDELINES (1994)?
Our concern with jury selection arises from the limitations imposed on defense counsel by the trial judge. During voir dire, the trial judge asked the venire several preliminary general questions, including whether the prospective jurors would follow the law as instructed by the judge. When Miller's defense counsel began to inquire into the same area, the judge prevented any further questions. Miller contends that this restriction unfairly limited his ability to obtain a fair jury.
We recognize that a trial judge has "considerable discretion in determining the extent of counsel's examination of prospective jurors." Williams v. State, 424 So.2d 148, 149 (Fla. 5th DCA 1982). However, this discretion must be exercised in light of Florida Rule of Criminal Procedure 3.300(b) which provides that the parties, through counsel, have the right to conduct an examination of each prospective juror. Although the trial judge certainly has the discretion to limit repetitive and argumentative voir dire, a trial judge must allow counsel the opportunity to ascertain latent or concealed prejudgments by prospective jurors. See Stano v. State, 473 So.2d 1282, 1285 (Fla.1985), cert....
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... ... 2003). The AEDPA “establishes a ... more deferential standard of review of state habeas ... judgments, ” Fugate v. Head , 261 F.3d 1206, ... 1215 (11th Cir. 2001), ... ascertain latent or concealed prejudgments by prospective ... jurors." Miller v. State , 683 So.2d 600, 602 ... (Fla. 2d DCA 1996); accord Harrison v. State , 172 ... ...
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...jurors. Vining v. State, 637 So.2d 921 (Fla.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994); Miller v. State, 683 So.2d 600 (Fla. 2d DCA 1996); Baker v. State, 517 So.2d 753 (Fla. 2d DCA 1987); Williams v. State, 424 So.2d 148 (Fla. 5th DCA 1982); Barker v. Randolph, 2......
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