State v. Melendez

• Decision Date: 03 February 1971
• Docket Number: No. 39478,39478
• Citation: 244 So.2d 137
• Parties: The STATE of Florida, Petitioner, v. Elias Gonzales MELENDEZ, Respondent.
• Court: Florida Supreme Court

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.

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.

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 Lowman v. State, 80 Fla. 18, 85 So. 166 (1920); Mulvey v. State, 41 So.2d 156 (Fla.1949). Also, a defendant can waive a jury trial entirely. F.Cr.P.R. 1.260.

It is the contemplation of Fla.Stat. § 914.01 and of F.Cr.P.R. 1.180, and of case law, that where a defendant absents himself during his trial, with knowledge that his trial is underway, his absence shall not be permitted to interrupt the proceedings. These rules and cases turn on the theory that the requirement of the defendant's presence is for his protection, and therefore he can waive it if he chooses by voluntarily absenting himself. The orderly administration of criminal justice and the protection of society require that a trial, otherwise valid, should not be aborted by a defendant's voluntary nonparticipation.

Recent Florida cases have witnessed the emergence of a concept of constructive notice, in that when a defendant is absent but is represented by counsel to whom he has not objected, who waives objection to the defendant's absence, actual or constructive knowledge of the proceedings may be imputed to the defendant. Recognizing the possibilities of abuse of this doctrine, its application has been, and should be, limited to those cases in which the defendant, upon his reappearance at his trial, acquiesces in or ratifies the actions taken by his counsel during his absence. See Cole v. State, 199 So.2d 480 (Fla.App.3rd, 1967). In Henzel v. State, 212 So.2d 92 (Fla.App.3rd, 1968), certiorari denied 393 U.S. 1085, 89 S.Ct. 870, 21 L.Ed.2d 778, rehearing denied 394 U.S. 967, 89 S.Ct. 1303, 22 L.Ed.2d 570, the District Court of Appeal, Third District, in discussing the application of the waiver doctrine to the requirement of a defendant's presence at trial, stated:

'(A) defendant's subsequent acquiescence in matters conducted during his absence by his attorney has been construed as such a waiver.' (212 So.2d page 93)

The District Court of Appeal attempted to distinguish the case Sub judice from its decision in Henzel v. State, Supra, on the theory that the defendant in this case had no actual or constructive notice that his...