Vargas v. State

983 So. 2d 3 (2006)

Osberto Dejesus VARGAS, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D03-1585.

District Court of Appeal of Florida, Third District.

December 13, 2006.

Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

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

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.

NOTES

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