Opinion
Case No. 2D01-1876.
Opinion filed February 6, 2002.
Petition Alleging Ineffective Assistance of Appellate Counsel pursuant to Florida Rule of Appellate Procedure 9.141(c).
Curtis L. Faniel, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Patricia A. McCarthy, Tampa, for Respondent.
Curtis L. Faniel petitions this court pursuant to Florida Rule of Appellate Procedure 9.141(c) alleging ineffective assistance of appellate counsel. Faniel asserts that appellate counsel erred in failing to argue on direct appeal that he was entitled to a new trial because the trial court violated his constitutional right to a public trial. We agree, grant the petition, reverse Faniel's conviction and sentence, and remand for a new trial.
Apparently in the interests of judicial economy, the trial court hearing Faniel's case employed a procedure whereby juries for three separate cases were selected from one large venire gathered in the courtroom. As a result of this procedure all of the seats behind the bar in the courtroom were filled, and Faniel's family (and any other members of the public who might have wished to attend) were excluded from voir dire. Faniel argues, and we agree, that this violated his right to a public trial. See Moore v. State, 765 So.2d 925 (Fla. 2d DCA 2000); Williams v. State, 736 So.2d 699 (Fla. 4th DCA 1999).
We note that although Moore involved the same trial judge, the voir dire in the instant case occurred before the opinion in Moore issued.
The State asserts that appellate counsel cannot be faulted for failing to raise this issue because it was neither preserved for appellate review, nor does it constitute fundamental error. We disagree. After a review of the entire record we conclude that the issue was properly preserved. The State is correct that Faniel's initial request that accommodations be made for his mother to sit in the courtroom was not sufficient to preserve the issue. See Williams, 736 So.2d at 701. However, before voir dire began on Faniel's case, Faniel renewed his objection specifically stating that he was objecting on the grounds that the public was being excluded from the trial.
The purpose underlying the contemporaneous objection rule is the need to "place the trial judge on notice that [an] error may have been committed, and provide him an opportunity to correct it at an early stage of the proceedings." Castor v. State, 365 So.2d 701, 703 (Fla. 1978). No "magic words" are needed. Williams v. State, 414 So.2d 509, 512 (Fla. 1982). We believe that Faniel's objection was sufficient to put the trial court on notice of a violation of Faniel's right to a public trial.
We therefore grant the petition, reverse Faniel's conviction and sentence, and remand for a new trial.
Petition granted, conviction and sentence reversed, and remanded.
FULMER, DAVIS, and KELLY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.