James D. GANYARD, Appellant, v. STATE of Florida, Appellee, 686 So. 2d 1361

CRIMINAL DIVISION EN BANC ALLEN, Judge. Having considered the various arguments presented by the appellant in this direct criminal appeal, we affirm his conviction. Only his argument pursuant to Coney v. State, 653 So.2d 1009 (Fla.), cert. denied, — U.S. —, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), requires discussion. We conclude that although error was committed when the appellant was not present during the prosecution’s exercise of challenges for cause, the error was harmless.

We further conclude that there was no error by virtue of the fact that the appellant was absent when his counsel might have exercised peremptory challenges but failed to do so.

In Coney, the supreme court clarified the intent behind Florida Rule of Criminal Procedure 3.180(a)(4), which states that “[i]n all prosecutions for crime the defendant shall be present ... at the beginning of the trial during the examination, challenging, impanel-ling, and swearing of the jury.” The court held that unless the defendant waives his presence or ratifies the strikes made outside his presence, he has the right to be physically present at the immediate site where pretrial juror challenges are exercised.

The court held further that a violation of the rule as interpreted is subject to a harmless error analysis. The appellant was not physically present at the bench conference during which jury challenges were exercised in the present case, and he never waived his presence or ratified the strikes made outside his presence. The rule, as interpreted in Coney, was therefore violated. Nevertheless, the error was harmless. Only the prosecution exercised peremptory challenges in the present case.

The appellant was not prejudiced by his absence from the bench when these challenges were exercised because the challenges were within the discretion of the prosecutor. The appellant argues, however, that there was harmful error because of his absence when his counsel might have exercised peremptory challenges. But there was no error at all in this regard because the court in Coney did not hold that a defendant has a right to be physically present whenever peremptory challenges might be exercised.

The court held that a defendant has a right to be present only when peremptory challenges “are exercised.” The Coney court indicated that a defendant’s absence from a bench conference at which peremptories are exercised is permissible where the defendant has expressed his “approval of the strikes” and willingness to “ratify strikes.” The court made no mention of any obligation to secure a defendant’s ratification of a decision not to exercise available peremptories, thus indicating that a defendant has no right to be present when defense counsel declines to exercise available peremptories.

Further, the Coney court found no basis for reversal due to Coney’s absence from the bench conference therein where only challenges for cause were exercised. Perempto-ries presumably could have been exercised during the bench conference, but, observing that none were actually exercised, the court concluded that there was no basis for reversal. Because the defense exercised no peremp-tories in the present case, there is no basis for reversal. However, we certify to the supreme court the following question of great public importance: DOES CONEY V. STATE, 653 So.2d 1009 (Fla.), CERT.

DENIED, — U.S. —, 116 S.CT. 315, 133 L.ED.2D 218 (1995), PROVIDE A BASIS FOR REVERSAL OF A CONVICTION WHEN THE DEFENDANT’S COUNSEL EXERCISED NO PEREMPTORY CHALLANGES? The appellant’s conviction is affirmed. MINER, J., concurs. LAWRENCE, J., specially concurs with written opinion. WEBSTER, J., dissents with written opinion. MICKLE, J., joins in WEBSTER, J.’s dissent.