Cotton v. State

District Court of Appeal of Florida

Cotton v. State

764 So. 2d 2, 1998 Fla. App. LEXIS 7502, 1998 WL 329441

CourtDistrict Court of Appeal of Florida

DecidedJune 24, 1998

DocketNo. 97-0907

StatusPublished

Cited by1 cases

This text of 764 So. 2d 2 (Cotton v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cotton v. State, 764 So. 2d 2, 1998 Fla. App. LEXIS 7502, 1998 WL 329441 (Fla. Ct. App. 1998).

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Opinion

KLEIN, Judge.

Appellant was convicted of second degree murdei». He argues that his right to be present at all essential stages of his proceedings was violated because he was not present at a calendar call when his counsel advised the court that he was not ready for trial because he had not been able to depose the medical examiner. Four days prior to the trial date, defense counsel orally moved for a continuance because he still had been unable to depose the medical examiner. The court denied the motion, but provided that defense counsel would have the opportunity to depose the medical examiner before that witness testified. The defendant argues that his absence at that hearing was also error.

Florida Rule of Criminal Procedure 3.180(a)(3) provides that the defendant shall be present “at any pretrial conference, unless waived by the defendant in writing.” Although pretrial conference is not defined in our criminal rules, Rule 3.220(p) provides:

(p) Pretrial Conference.

(1) The trial court may hold 1 or more pretrial conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. [3]*3The defendant shall be present unless the defendant waives this in writing.

We do not agree with the defendant that the calendar call or the later hearing at which his counsel requested a continuance were-pretrial conferences as contemplated by Rule 3.180(a)(3). Even if they were, appellant’s absence would be harmless, because he could not have assisted in any way. Coney v. State, 653 So.2d 1009, 1013 (Fla.1995). We therefore affirm.

GUNTHER and FARMER, JJ., concur,-

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KLEIN, Judge.

Appellant was convicted of second degree murdei». He argues that his right to be present at all essential stages of his proceedings was violated because he was not present at a calendar call when his counsel advised the court that he was not ready for trial because he had not been able to depose the medical examiner. Four days prior to the trial date, defense counsel orally moved for a continuance because he still had been unable to depose the medical examiner. The court denied the motion, but provided that defense counsel would have the opportunity to depose the medical examiner before that witness testified. The defendant argues that his absence at that hearing was also error.

Florida Rule of Criminal Procedure 3.180(a)(3) provides that the defendant shall be present “at any pretrial conference, unless waived by the defendant in writing.” Although pretrial conference is not defined in our criminal rules, Rule 3.220(p) provides:

(p) Pretrial Conference.

(1) The trial court may hold 1 or more pretrial conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. [3]*3The defendant shall be present unless the defendant waives this in writing.

We do not agree with the defendant that the calendar call or the later hearing at which his counsel requested a continuance were-pretrial conferences as contemplated by Rule 3.180(a)(3). Even if they were, appellant’s absence would be harmless, because he could not have assisted in any way. Coney v. State, 653 So.2d 1009, 1013 (Fla.1995). We therefore affirm.

GUNTHER and FARMER, JJ., concur,-

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764 So. 2d 2, 1998 Fla. App. LEXIS 7502, 1998 WL 329441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotton-v-state-fladistctapp-1998.

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