JUAN CARLOS VIERA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Juan Carlos Viera appeals his armed robbery conviction, claiming the trial judge violated his right to challenge a juror for cause by imposing a deadline for such challenges before jury selection concluded. The appellate court reversed and remanded for a new trial, holding that trial judges cannot restrict the timing of juror challenges.
A trial judge has no authority to restrict a party's right to challenge any juror for cause prior to the time the jury is sworn. Because the trial judge violated this rule and the defendant exhausted his peremptory challenges while attempting to remove the improperly refused juror, an unconditional reversal and remand for a new trial is required.
[1] A trial judge has no authority to restrict a party's right to challenge a prospective juror for cause before the jury is sworn.
[2] Florida Rule of Criminal Procedure 3.310 permits a challenge to an individual prospective juror before the juror is sworn to try the cause.
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Join FLexlaw to unlock all legal intelligence“The State or defendant may challenge an individual prospective juror before the juror is sworn to try the cause.”
This quote from Fla. R. Crim. P. 3.310 establishes the rule permitting challenges for cause at any time before swearing.
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Join FLexlaw to unlock all legal intelligenceDuring jury selection but before the jury was sworn, defense counsel challenged juror Mr. Taylor for cause based on opinions Taylor expressed during v…
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SCHWARTZ, Chief Judge.
Viera appeals from an armed robbery conviction after a jury trial. We reverse.
At the conclusion of jury selection, but before the jury was sworn, defense counsel asserted a challenge for cause of a particular juror, Mr. Taylor. Although, because of the opinions expressed by Taylor during voir dire, the challenge was at least colorable and could surely have been granted within the trial judge’s discretion,1 he refused to rule upon it on the ground that the challenge had not been made earlier as he had previously instructed. This restriction of the time for making a challenge for cause was clearly and erroneously contrary to Florida Rule of Criminal Procedure 3.310, which provides that: “[t]he State or defendant may challenge an individual prospective juror before the juror is sworn to try the cause.” By virtue of this rule, the supreme court has specifically stated,
[a] trial judge has no authority to infringe upon a party’s right to challenge any juror, either peremptory or for cause, prior to the time the jury is sworn.
Jackson v. State, 464 So. 2d 1181, 1183 (Fla. 1985); see also Peek v. State, 413 So. 2d 1225 (Fla. 3d DCA 1982), pet. for review denied, 424 So. 2d 763 (Fla.1982).
There remains the question of the appropriate remedy. In theory, because the trial judge has never in fact exercised his discretion upon the challenge for cause, all that need be done is to remand for him now to do so, with directions to afford a new trial only if the challenge is sustained. In fact, to take that course after the trial has terminated in a guilty verdict is both impractical, if not impossible, and certainly inadvisable. See Hernandez v. State, 473 So. 2d 1364 (Fla. 3d DCA 1985) (Pearson, J., concurring), and cases cited. Instead, since the defendant exhausted his allotted peremptory challenges by striking the juror in question and then unsuccessfully sought to exercise an additional challenge, we conclude that the error necessitates an unconditional remand for a new trial. Hill v. State, 477 So. 2d 558 (Fla.1985); Jefferson v. State, 489 So. 2d 211 (Fla. 3d DCA 1986); Leon v. State, 396 So. 2d 203 (Fla. 3d DCA 1981), pet. for review denied, 407 So. 2d 1106 (Fla.1981).
Reversed and remanded with directions.
. We need not determine whether it would have been error to deny the challenge for cause. See Jefferson v. State, 489 So. 2d 211 (Fla. 3d DCA 1986).
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Auriemme v. State, 501 So. 2d 41 (Fla. 5th DCA 1986)…gh that was the factual context of Hill, no prior or subsequent case that we have found contains such a condition precedent for appealing the denial of challenge for cause provided all peremptory challenges were exhausted. See, e.g., Viera v. State, 490 So. 2d 201 (Fla. 3d DCA 1986). Accordingly, we find the issue proper for appeal. Turning to the merits of the case, Auriemme contends that it was error to deny his two challenges for cause, thereby forcing the exhaustion of his peremptory challenges. We agree…
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Smith v. State, 516 So. 2d 43 (Fla. 3d DCA 1987)…perly forced to waste one of his peremptory challenges on Ms. Alfonso. See, e.g., Hill v. State, 477 So. 2d 553, 556 (Fla.1985); Jefferson v. State, 489 So. 2d 211, 212 (Fla. 3d DCA), rev. denied, 494 So. 2d 1153 (Fla.1986); see also Viera v. State, 490 So. 2d 201, 202 (Fla. 3d DCA 1986); Leon v. State, 396 So. 2d 203 (Fla. 3d DCA), rev. denied, 407 So. 2d 1106 (Fla.1981). Second, we find it unnecessary to determine whether the defendant properly preserved for appellate review the admissibility of the testim…
Authorities Cited
- Leon v. State, 396 So. 2d 203 (Fla. 3d DCA 1981)
- Jackson v. State, 464 So. 2d 1181 (Fla. 1985)
- Jefferson v. State, 489 So. 2d 211 (Fla. 3d DCA 1986)
- Peek v. State, 413 So. 2d 1225 (Fla. 3d DCA 1982)
- Hernandez v. State, 473 So. 2d 1364 (Fla. 3d DCA 1985)