Stephan v. State
| Citation | 251 So.2d 30 |
| Decision Date | 19 July 1971 |
| Docket Number | No. 70-636,70-636 |
| Parties | William Alfred STEPHAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Appeal from Criminal Court of Record, Orange County; Warren H. Edwards, Judge.
P. Thomas Boroughs, of Mairs, Wood, Muller, Boroughs & Fisher, Winter Park, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Rodney Durrance, Jr., and Herbert P. Benn, Asst. Attys. Gen., West Palm Beach, for appellee.
Affirmed.
MAGER, J., concurs specially, with opinion.
Defendant appeals from a judgment and sentence of the Criminal Court of Record in and for Orange County, Florida, entered by the Court after the defendant was found guilty in a jury trial of larceny of an automobile and assault and battery. Defendant seeks reversal of the judgment and sentence on the ground that he had a right to be present "at all proceedings before the court when the jury is present" and that such right could not be waived by his counsel unless he consented or acquiesced in the waiver.
A review of the record on appeal reflects that counsel for defendant not only did not object to the absence of defendant during the "proceeding" which will hereinafter be discussed, but, in addition, defendant's absence was not assigned as a ground in his motion for a new trial nor was such absence and waiver assigned as error in this appeal. It is axiomatic that an appellate court will review only those alleged errors properly presented to it and will not determine questions not presented and considered by the trial court and not embraced in the assignments of error. Silver v. State, Fla.1966, 188 So.2d 300; Mortellaro v. State, Fla.1954, 72 So.2d 815; Dukes v. State, 1941, 148 Fla. 109, 3 So.2d 754; Ryan v. State, 1910, 60 Fla. 25, 53 So. 448; 2 Fla.Jur., Appeals, § 287; Rule 6.16, F.A.R., 32 F.S.A. A recognized exception to this foregoing principle will be made where the alleged error constitutes "fundamental error". Silver v. State, Fla.App.1965, 174 So.2d 91; Miller v. State, Third District Court of Appeal, 246 So.2d 169, opinion filed April 6, 1971. See also State v. Youngblood, Fla.1968, 217 So.2d 98. Fundamental error "must be one which reaches down into the vitals of the trial itself, and must be such as to produce the guilty verdict which otherwise could not have resulted without the assistance of the error". State v. Youngblood, supra. Whether defendant's absence (although waived by counsel) from a proceeding before the trial when the jury is present constitutes fundamental error compelling a new trial in the interest of justice depends upon the facts of the case. Williams v. State, Supreme Court of Florida, 247 So.2d 425, opinion filed May 5, 1971. Even constitutional issues, unless they constitute fundamental error, are waived unless they are timely raised. Sanford v. Rubin, Fla.1970, 237 So.2d 134.
A careful review of the record on appeal in the case sub judice fails to reflect such circumstances as would warrant the conclusion that fundamental error was committed. The record reveals that the defendant was absent at a point in the proceedings when the jury, after having retired, returned to the courtroom to make inquiries of the judge. The jury had retired on June 5, 1970, at 5:53 p.m., and returned to the courtroom at 6:25 p.m. for the purpose of making an inquiry into the testimony of a witness which apparently the jury was not able to recall. The court advised the jury that it would have to determine to the best of its recollection as to what the testimony was and, if necessary, the court reporter would be recalled to clarify this testimony. This entire colloquy between the court and the jury lasted approximately five minutes for the record reflects that the jury was excused at 6:30 p.m. The record clearly reveals that the defendant was not present during this "proceeding" and that the court was abundantly aware of this fact as is reflected from the following testimony:
Defendant relies upon the provisions of F.S., Section 914.01(4), F.S.A., which reads as follows:
Section 920.05(1)(a), provides in part:
A reading of these sections in pari materia would indicate that in order for defendant's absence to constitute "fundamental error" his substantial rights must have been prejudiced by such absence. The facts of this case do not reveal that the substantial rights of the defendant were prejudiced during the five-minute discussion that transpired between the court and the jury. The jury could not recall the testimony of one witness and made inquiry of the court for that purpose and was advised that the jury would have to depend upon its own recollection. 3 To suggest that the defendant's absence under these circumstances resulted in prejudicing his substantial rights and that such absence could not...
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United Theaters of Fla., Inc. v. State ex rel. Gerstein
...issue was not raised in the trial court and will not be heard on appeal. Silver v. State, Fla.1966, 188 So.2d 300; and Stephan v. State, Fla.App.1971, 251 So.2d 30. See also For Adults Only, Inc. v. State ex rel. Gerstein, Fla.App.1972, 257 So.2d Appellants contend there was error in that p......