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Jackson v. State9/9/2004
the current theft with which the defendant is charged. If the jury finds the defendant guilty, then the jury reconvenes to hear evidence of the defendant's prior theft convictions. Smith, 771 So.2d at 1191.
The trial court reasoned that the same procedure is equally applicable to the present case, when the defendant was charged with armed robbery and possession of a firearm by a convicted felon. The court thus employed the same bifurcated procedure.
The defendant argues that the procedure is unfair because the defendant is unable to ask the jury in voir dire whether they will hold it against the defendant that he has prior felony convictions. The defense contends that the defendant should be able to ask such questions, but in a *717 bifurcated procedure, cannot do so without disclosing the existence of the prior convictions to the jury.
The Florida Supreme Court has rejected this exact claim in the context of the capital punishment statute. In capital cases, there is a two stage bifurcated trial. The first phase is the guilt phase. If the defendant is convicted, this is followed by the penalty phase. The same jury is used for both. Melton v. State, 638 So.2d 927, 929 & n. 3 (Fla.1994). The Florida Supreme Court said:
Melton argues that he was entitled to separate guilt and penalty phase juries so he could conduct an effective voir dire about prospective jurors' opinions on imposing the death penalty if a defendant has a prior murder conviction. The trial judge denied Melton's motion to empanel separate juries, and defense counsel chose not to question jurors about the possible effect of a prior murder conviction.
This Court has rejected the argument that separate juries should be empaneled for the guilt and penalty phases of all capital trials. Riley v. State, 366 So.2d 19, 21 (Fla.1978). Jurors must be able to follow the law as given by the trial judge, which includes following the judge's instructions to weigh aggravating and mitigating factors. Melton's prior convictions constitute an aggravating factor that the jurors were instructed to weigh. The record before us shows that the jurors empaneled in Melton's case said during voir dire that they could follow the law. Melton is not entitled to relief on this issue.
Melton, 638 So.2d at 929 (citation and footnotes omitted); see also Head v. State, 253 Ga. 429, 322 S.E.2d 228, 231-32 (1984). We reject the defendant's argument on authority of Melton.
V.
Because we are reversing for a new trial, it is not necessary for us to reach the defendant's claim that it was fundamental error for a certified legal intern to participate in defendant's trial without there being a signed consent form in the court file. See Duval v. State, 744 So.2d 523 (Fla. 2d DCA 1999), review dismissed, 753 So.2d 564 (Fla.2000), and cases cited therein; cf. Smith v. State, 866 So.2d 51 (Fla.2004) (no fundamental error where record is silent on whether venire was sworn).
The remaining points on appeal need not be addressed.
Affirmed in part, reversed in part, and remanded for a new trial.
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