Walker v. State, 83-51

• Citation: 438 So.2d 969
• Decision Date: 07 October 1983
• Docket Number: No. 83-51,83-51
• Parties: George William WALKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 969

438 So.2d 969

George William WALKER, Appellant, v. STATE of Florida, Appellee.

No. 83-51.

District Court of Appeal of Florida,

Second District.

Oct. 7, 1983.

Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., for appellee.

LEHAN, Judge.

Defendant appeals his convictions and sentences for kidnapping and sexual battery. We reverse.

Defendant's contention on appeal is that the trial court erred in not permitting his presence during the exercise of peremptory challenges despite his requests to be present and his objections to being excluded.

Voir dire questioning of prospective jurors was conducted in open court in defendant's presence. However, the trial judge, assistant state attorney, and defense counsel retired to another room, out of the jury's presence, for the exercise of peremptory challenges. Defense counsel conveyed defendant's request that defendant be present at that time. The judge, after ascertaining from defense counsel that defendant had been consulted concerning the subject of peremptory challenges, denied the request.

Rule 3.180(a)(4), Florida Rules of Criminal Procedure, provides that "[D]efendant shall be present ... during the ... challenging ... of the jury." The state nonetheless argues that defendant was not entitled to be present at the "mechanical function" of exercising challenges and that that function is not a "critical stage of the proceedings," citing Hall v. State, 420 So.2d 872 (Fla.1982). The state also argues that Francis v. State, 413 So.2d 1175 (Fla.1982), which found the exclusion of a defendant from the jury selection process to be reversible error, is distinguishable because in Francis defendant was not present during jury selection procedures conducted in the presence of the jury.

However, the exercise of challenges by a defendant is not necessarily a mere "mechanical function." It may involve the formulation of on-the-spot strategy decisions which may be influenced by the actions of the state at the time. In Hall defendant was absent only from the roll call or general qualifications of the jurors. On the other hand, the exercise of peremptory challenges is "essential to the fairness of a trial by jury," and we cannot approve the erroneous exclusion of defendant unless we are satisfied beyond a reasonable doubt that the error was harmless. Francis at 1178.

Our position is...