03-1585 VARGAS V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 03-1585 VARGAS V. STATE

Case Date: 12/13/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006

OSBERTO DEJESUS VARGAS, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** CASE NO. 3D03-1585 LOWER TRIBUNAL NO. 96-41198

Opinion filed December 13, 2006. An Appeal from the Circuit Court for Miami-Dade County, Thomas Carney, Judge. Bennett H. Brummer, Public Defender, Assistant Public Defender, for appellant. and Robert Kalter,

Charles J. Crist, Jr., Attorney General, and Fleming, Assistant Attorney General, for appellee.

Angel

L.

Before COPE, C.J., and GREEN, J., and SCHWARTZ, Senior Judge.

PER CURIAM.

This case, which at this stage concerns the effect of the unavailability of the jury selection portion of the trial

transcript, is before the Court upon remand from the Supreme Court, State v. Vargas, 937 So. 2d 663 (Fla. 2006), for

reconsideration of Vargas v. State, 902 So. 2d 166 (Fla. 3d DCA 2004), in light of Jones v. State, 923 So. 2d 486 (Fla. 2006). As the appellant forthrightly concedes, under the rule

announced in Jones, and indeed under the formulation contained in Justice Pariente's separate opinions, see Jones, 923 So. 2d at 490 (Pariente, C.J., dissenting); Vargas, 937 So. 2d at 664 (Pariente, J., concurring in part and dissenting in part), the fact that he can point to no possible error which might have been presented by the actual transcript of the voir dire

precludes the automatic award of a new trial, as ordered in Vargas I. On the authority of Jones, therefore, our previous

opinion is vacated and the motion for new trial is denied. 1 Motion denied.

1

The appeal will now proceed in due course on the merits.

2

Download 03-1585 VARGAS V. STATE.pdf