State v. Melendez, No. 39478

CourtUnited States State Supreme Court of Florida
Writing for the CourtADKINS; ROBERTS
Citation244 So.2d 137
Docket NumberNo. 39478
Decision Date03 February 1971
PartiesThe STATE of Florida, Petitioner, v. Elias Gonzales MELENDEZ, Respondent.

Page 137

244 So.2d 137
The STATE of Florida, Petitioner,
v.
Elias Gonzales MELENDEZ, Respondent.
No. 39478.
Supreme Court of Florida.
Feb. 3, 1971.

Page 138

Robert L. Shevin, Atty. Gen., and Melvin Grossman, Asst. Atty. Gen., for petitioner.

Hughlan Long, Public Defender and Alan S. Becker, Asst. Public Defender, for respondent.

ADKINS, Justice.

By petition for writ of certiorari, we are asked to review the decision of the District Court of Appeal, Third District, Melendez v. State, 231 So.2d 251 (Fla.App.3rd, 1970), which reversed the conviction of defendant, respondent herein, on grounds he did not freely and voluntarily waive his right to be present at selection of his trial jury. The State assigns conflict with several Florida appellate decisions, pursuant to Fla.Const., art. V, § 4(2) (1968), F.S.A., and F.A.R. 4.5, subd. c(6), 32 F.S.A. We have jurisdiction.

The question we answer is whether a defendant in a noncapital felony case has the power to ratify the selection of his jury, done in his absence because he was not notified as to the time his trial would be held, but he was represented by counsel at jury selection and the jury was sworn only after defendant consented to it.

In the case at Bar, the defendant was charged with unlawful sale of narcotics and unlawful possession of narcotics. When he did not appear for his trial due to failure of notification, the trial judge elected to proceed with examination, challenging, and impanelling of the jury. Defendant's privately-employed counsel was present and consented. The defendant then appeared, and after careful questioning by the trial judge as to his willingness and understanding, ratified the selection of the jury, which then was sworn. That portion of the trial record pertaining to ratification of the jury selection is quoted in the opinion of the District Court, and need not be repeated here.

After his conviction, the defendant appealed and argued that he had not freely and voluntarily waived his objection to the selection of the jury in his absence. The District Court agreed and reversed, relying on Fla.Stat. § 914.01, F.S.A.

Page 139

It is settled law that trial begins when the selection of a jury to try the case commences. The defendant has a right to be, and is required to be, present during certain phases of his trial, including all stages of jury selection; however, if the defendant is present at the start of his trial, and thereafter voluntarily absents himself, the trial may continue as though he were present. Fla.Stat. § 914.01, F.S.A., which is repealed effective January 1, 1971, Laws of Florida (1970), Ch. 70--339, § 180, and which has been superseded by similar provisions in F.Cr.P.R. 1.180(a)(3) and (b), 33 F.S.A. Also, see...

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52 practice notes
  • Muhammad v. State, No. SC90030.
    • United States
    • United States State Supreme Court of Florida
    • January 18, 2001
    ...ability to participate in the selection of a jury." United States v. Washington, 705 F.2d 489, 497 (D.C.Cir. 1983). In State v. Melendez, 244 So.2d 137, 139 (Fla.1971), defense counsel consented to the continued examination, challenging, and empaneling of the jury even though the defendant ......
  • Peri v. State, No. 81-2107
    • United States
    • Court of Appeal of Florida (US)
    • January 18, 1983
    ...Beyond the fact that "[i]t is settled law that trial begins when the selection of a jury to try the case commences," State v. Melendez, 244 So.2d 137, 139 (Fla.1971), it is axiomatic that the selection of a jury in a criminal case is a critical stage of any trial. Francis v. State, 413 So.2......
  • State v. Carver, No. 10555
    • United States
    • United States State Supreme Court of Idaho
    • April 27, 1972
    ...and see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), subsequently ratified by defendants, State v. Melendez, 244 So.2d 137 (Fla.1971), or waived by obstreperous courtroom conduct, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Furthermore the......
  • Hojan v. State, No. SC13–5
    • United States
    • United States State Supreme Court of Florida
    • January 31, 2017
    ...the circuit court did not err in summarily denying relief as to this subclaim. See Muhammad , 782 So.2d at 352 ("In State v. Melendez , 244 So.2d 137, 139 (Fla. 1971), defense counsel consented to the continued examination, challenging, and empaneling of the jury even though the defendant w......
  • Request a trial to view additional results
52 cases
  • Muhammad v. State, No. SC90030.
    • United States
    • United States State Supreme Court of Florida
    • January 18, 2001
    ...ability to participate in the selection of a jury." United States v. Washington, 705 F.2d 489, 497 (D.C.Cir. 1983). In State v. Melendez, 244 So.2d 137, 139 (Fla.1971), defense counsel consented to the continued examination, challenging, and empaneling of the jury even though the defendant ......
  • Peri v. State, No. 81-2107
    • United States
    • Court of Appeal of Florida (US)
    • January 18, 1983
    ...Beyond the fact that "[i]t is settled law that trial begins when the selection of a jury to try the case commences," State v. Melendez, 244 So.2d 137, 139 (Fla.1971), it is axiomatic that the selection of a jury in a criminal case is a critical stage of any trial. Francis v. State, 413 So.2......
  • State v. Carver, No. 10555
    • United States
    • United States State Supreme Court of Idaho
    • April 27, 1972
    ...and see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), subsequently ratified by defendants, State v. Melendez, 244 So.2d 137 (Fla.1971), or waived by obstreperous courtroom conduct, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Furthermore the......
  • Hojan v. State, No. SC13–5
    • United States
    • United States State Supreme Court of Florida
    • January 31, 2017
    ...the circuit court did not err in summarily denying relief as to this subclaim. See Muhammad , 782 So.2d at 352 ("In State v. Melendez , 244 So.2d 137, 139 (Fla. 1971), defense counsel consented to the continued examination, challenging, and empaneling of the jury even though the defendant w......
  • Request a trial to view additional results

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