Fill and Sign the Assertion of Right to Be Present Form

IN THE CIRCUIT COURT OF ________ COUNTY, __________ NAME OF PLAINTIFF) )) V. ))NO. ))NAME OF DEFENDANT) )) ASSERTION OF RIGHT TO BE PRESENT COMES NOW, ___________, by counsel, and asserts his right to be present at all proceedings in this case, pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article ______, Sections ____________ of the __________ Constitution. In support of his notice ___________ states as follows: 1. On the most basic level, _______________ life is on the line in this case and he has an absolute, non-waivable right to be present at every hearing at which the prosecution takes another step towards executing him. Over a century ago, the Supreme Court acknowledged that "[t]he necessities of the defense may not be met by the presence of his counsel only." Hopt v. Utah, 110 U.S. 574, 578, 4 S. Ct. 202, 28 L. Ed. 262 (1884). Already, by 1912, the Court had held that the defendant "is entitled to be present at all . . . stages of the proceed ings." Diaz v. United States, 223 U.S. 442, 454, 56 L. Ed. 500 (1912) (emphasis supplied); see also Snyder v. Massachusetts , 291 U.S. 97, 105-106, 54 S. Ct. 330, 78 L. Ed. 674, 678 (1933) ("in a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own person" (empha sis supplied)); Faretta v. California, 422 U.S. 806, 819-20, 95 S. Ct. 2525, -2- 45 L. Ed. 2d 562 (1975) ("[t]he right to defend is given directly to the accused; for it is he who suffers the consequenc es if the defense fails"). The Snyder Court provided the basic rationale which underlies the accused's right to be present: Only then "will [it] be in his power . . . to give advice or suggestions. . . ." Id., 291 U.S. at 106, 78 L. Ed. at 678. Indeed, this is a capital case and under the authority of "Diaz and Hopt . . . a capi tal defendant's right to presence is nonwaivable." Proffitt v. Wainwright, 685 F.2d 1227, 1258 (1982), modified on rehearing , 706 F.2d 311 (11th Cir. 1983); accord Hall v. Wainwright, 733 F.2d 766, 775 (11th Cir. 1984). 2.___________________ assertion of the right to be present ex tends to all aspects of this case, includ ing but not limited to: a. all pre-trial hearings, conferences or any other matters (save only telephone scheduling of proposed hear ings or meetings between the attorneys);b. all other pre-trial matters, including but not limited to the drawing of the jury pool;c. all aspects of the trial, including but not limited to all voir dire, all bench conferences, and all charge conferences;d. all other hearings and judicial proceedings of any kind which may influence whether he lives of dies.WHEREFORE, _______________ moves that his motion be granted.Respectfully submitted,__________By:__________________________ ____________________ -3- CERTIFICATE OF SERVICE I, ____________, attorney for ____________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the ____ day of __________ _____.Respectfully submitted, ________________________________