County Criminal Court: CRIMINAL LAW- trial may continue where defendant voluntarily absents himself after the start of a trial-neither the rules nor case law require the State to prove, or the court to find, that such absence is voluntary before proceeding with the trial. While state may have improperly gone beyond the evidence to argue that the defendant suborned perjury, no  fundamental error in light of the entire record. Order of the trial court affirmed.  Weber v. State, No. CRC 07-05619CFAWS (Fla. 6th Cir. App. Ct. January 22, 2009).  














JESSICA CATHERINE WEBER                    Appeal No. 07-05619CFAWS

    Appellant                                                 UCN:  512007005619A000WS

                                                                        Lower Case No. 07-03997MMAWS









 Opinion Filed ______________


Appeal from Pasco County Court

Honorable Marc Salton


Thomas Matthew McLaughlin, Esquire

Attorney for Appellant


Sean T Donovan, Esquire

Attorney for Appellee






             This case comes before the court on an appeal from a Final Judgment, after a jury trial, adjudicating Appellant guilty of Obstructing or Resisting an Officer Without Violence.   The appeal raises two issues. 

Issue One

Whether the trial court erred by going forward with the trial even though the appellant was not present.


            During a recess of the trial, immediately before closing arguments, a bomb threat caused the courthouse to be cleared.  The recess ended at 1:00 but the building remained cleared until 2:30.  The court reconvened at 2:45 with everyone present except the defendant.  The court allowed counsel time to try to locate his client, ordered the halls sounded, and inquired to be sure that no one was being prevented from getting back into the building.   The court then continued with the trial, giving each side 20 minutes for closing arguments.  After the court had finished instructing the jury, the defendant returned to the courtroom saying she had been unable to find a parking space.

            In support of its argument the appellee cites only Florida Rule of Criminal Procedure 3.189, Jarrett v. State, 654 So.2d 973(Fla. 1st DCA 1995), and Daniels v. State, 587 So.2d 460(Fla. 1991).  Based upon these, the appellee apparently argues that the court  must conduct an evidentiary hearing to determine that the absence of the defendant was not voluntary and would further argue that the circumstances under which the defendant claims to have failed to appear in this case would not be a voluntary absence.  The court holds that neither the law nor logic supports either position.  Under Rule 3.180(c) the trial of a defendant, who voluntarily absents himself after the start of a trial, may continue without him.   Neither the rule, nor the cases, require the State to prove or the court to find that such absence is voluntary before proceeding with the trial.   Even if the defendant’s representation that she was unable to find a parking place is taken as true, we hold that this is not such a circumstance as to make her absence anything other than voluntary.  

Issue Two

Whether the prosecutor’s improper comments denied the appellant a fair trial.

            During the course of the closing argument the prosecutor made the following statements:

            “You have to weigh the credibility.  First of all, we have law enforcement officers who were out there on the streets doing routine patrols, just doing their job.  There’s no evidence that they had any vendettas, that they had anything against the defendant in this case.  They were just out there doing their job like they do every day, day in and day out.”

            “In order for you to find the defendant not guilty, you have to believe that Patrolman Kirkpatrick and Officer Nohejl got together and made up this story.  Folks, that’s just not reasonable.”

            “…” [t]his defendant and her two friends who were in the car with her got together and made up a story placing the blame on patrolman Kirkpatrick so she could get out of trouble.”


            As appellee admits there was never a timely objection to any of these statements, and consequently, only fundamental error will sustain a reversal.  Although, clearly the final remark quoted above is improper argument going beyond the evidence to argue that the defendant suborned perjury {Cooper v. State, 712 So.2d 1216(Fla. 2d DCA), rev denied, 720 So.2d 518(Fla. 1998)} we cannot find that it reaches the level of fundamental error.  Looking to the entire record it does not appear that the prosecutorial argument was of such character that its influence impairs the calm and dispassionate consideration of the evidence and the merits of the case by the jury   (see Caraballo v. State, 762 So.2d 542(Fla. 5rth DCA 2000).

            IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.

            Done and Ordered at New Port Richey, Pasco County Florida, this 21st day of January, 2009.




                                                                        /s/_________________________________                                                                         W. Lowell Bray, Jr., Circuit Judge

                                                                        Appellate Division





                                                                        Daniel D. Diskey, Circuit Judge

                                                                        Appellate Division




                                                                        /s/_________________________________                                                                         Stanley R. Mills, Circuit Judge

                                                                        Appellate Division



Copies forwarded to:

Thomas Matthew McLaughlin, Esq.

Sean T. Donovan, Esq.