THOMAS KIDD, A/K/A CHARLES GLOBE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a juror can be challenged peremptorily until sworn, and the defense attorney was not required to attempt a challenge after the judge indicated it would be fruitless.
Defendant was convicted of sexual battery, kidnapping, and robbery. The trial court refused to allow the exercise of peremptory challenges after a ful…
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PER CURIAM.
Defendant appeals his convictions and sentences for sexual battery, kidnapping, and robbery. We reverse.
Defendant claims that the trial court erred in not allowing the exercise of peremptory challenges of jurors at a time when a full jury panel had been accepted but not yet sworn. We agree that a juror can be challenged up until the time he is sworn. See Fla.R.Crim.P. 3.310; Jackson v. State, 464 So. 2d 1181 (Fla.1985).
The state contends that the defense motion was a request to challenge the jurors for cause, not a request to exercise the remaining peremptory challenges. However, the trial court had already stated that no juror could be challenged at that point because all jurors had already been accepted by the state and the defense. An attorney is “not required to pursue a completely useless course when the judge had announced in advance that it would be fruitless.” Bailey v. State, 224 So. 2d 296, 297 (Fla.1969). See also Bell v. State, 338 So. 2d 1328, 1329 (Fla. 2d DCA 1976). Here, the defense attorney was not required to attempt to exercise any remaining peremptory challenges when the trial court had already stated that no such challenges would be allowed.
Our disposition of defendant’s first issue on appeal makes the remaining issues moot.
Reversed and remanded for a new trial.
RYDER, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shelby v. State, 541 So. 2d 1219 (Fla. 2d DCA 1989)…ial of appellant’s right to exercise his peremptory challenge before the jury is sworn is error and requires us to reverse appellant’s convictions and sentences and remand for a new trial. Gilliam v. State, 514 So. 2d 1098 (Fla.1987); Kidd v. State, 486 So. 2d 41 (Fla. 2d DCA 1986); Walden v. State, 319 So. 2d 51 (Fla. 1st DCA 1975), cert. denied, 330 So. 2d 21 (Fla.1976). We next address appellant’s assertion that the court should have entered a judgment of acquittal on the charge of sexual battery while u…
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Duque v. State, 498 So. 2d 1334 (Fla. 2d DCA 1986)…as biased in favor of law enforcement. The failure to permit the exercise of the challenge was error. “[A] party may challenge any juror at any time before the jurors are sworn.” Jackson v. State, 464 So. 2d 1181, 1183 (Fla.1985). See Kidd v. State, 486 So. 2d 41 (Fla. 2d DCA 1986). The state concedes that the failure to permit the backstrike was error but, citing Jones v. State, 332 So. 2d 615 (Fla.1976), [*1337] argues that the error was harmless because the subsequent interview of the juror by the trial j…
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Johnson v. State, 565 So. 2d 911 (Fla. 1st DCA 1990)…reme court categorically held that the denial of the defendant’s right to challenge a prospective juror before the jury is sworn “is per se reversible error.” Id. at 1099. See also Shelby v. State, 541 So. 2d 1219 (Fla. 2d DCA 1989); Kidd. v. State, 486 So. 2d 41 (Fla. 2d DCA 1986); Walden v. State, 319 So. 2d 51 (Fla. 1st DCA 1975), cert. denied, 330 So. 2d 21 (Fla.1976). Consequently, we must reverse appellant’s conviction and sentence and remand for a new trial. BARFIELD and WOLF, JJ., concur.…
Authorities Cited
- Jackson v. State, 464 So. 2d 1181 (Fla. 1985)
- Bailey v. State, 224 So. 2d 296 (Fla. 1969)
- Bell v. State, 338 So. 2d 1328 (Fla. 2d DCA 1976)