KENNETH GRIFFIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1987-02-25
No. 86-2052
SCHEB, A.C.J., and FRANK, J., concur.
502 So. 2d 1350 Florida District Court of Appeal, Second District (1987) Caution
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Kenneth Griffin appeals his conviction for battery of a law enforcement officer, challenging the trial court's jury selection procedure that prohibited back strikes. The appellate court affirms the conviction, holding that while the trial court's practice of swearing jurors individually before completing the full panel was improper under newly established law, Griffin failed to preserve the issue for appeal by not objecting or attempting to exercise back strikes.


Holding

Although the trial court's procedure was improper under the rule established in Tedder v. Video Electronics, Inc., the error was not reversible because Griffin failed to preserve the issue by not objecting to the procedure or attempting to exercise back strikes on any juror after they were sworn.


Headnotes

[1] A trial court's prohibition of back striking jurors is improper when it prevents counsel from considering the entire panel before exercising peremptory challenges.

[2] A trial court may not selectively swear individual jurors prior to the opportunity of counsel to view the entire panel from which challenges are to be made, absent except…

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Key Quotes

“Florida Rule of Criminal Procedure 3.310 provides that a party may challenge an individual juror at any time before he is sworn to try the cause. By swearing in the jurors individually before they were accepted as an entire panel, the trial court improperly restricted the right of the appellant to consider the jury panel as a whole when exercising his peremptory challenges.”

Establishes the legal standard that individual jurors should not be sworn before the entire panel is available for consideration in peremptory challenges.

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Facts & Procedural History

Griffin was charged with two counts of battery of a law enforcement officer and tried with two other defendants. During jury selection, the trial cour…

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Opinion of the Court
SCHOONOVER, Judge.

SCHOONOVER, Judge.

Appellant, Kenneth Griffin, appeals from a judgment and sentence entered pursuant to a jury verdict finding him guilty of battery of a law enforcement officer. We affirm.

The sole issue on this appeal is whether the trial court committed reversible error during the jury selection process. Although we find that the trial court’s actions during the jury selection process were improper, we do not find on the facts of this case that the trial court committed reversible error. Appellant, charged with two counts of battery of a law enforcement officer, went to trial with two other defendants.' During voir dire examination of prospective jurors, the court stated that it would not allow any further back striking of jurors. From that time forward, after the parties had an opportunity to question prospective jurors, if they were not challenged, they were individually sworn. The attorneys, consequently, could not back strike them. At the conclusion of the trial, the jury returned a verdict finding appellant not guilty of one of the charges of battery of a law enforcement officer and guilty of the other. He was sentenced within the guidelines to serve four and one-half years in the state prison. This appeal timely followed.

Florida Rule of Criminal Procedure 3.310 provides that a party may challenge an individual juror at any time before he is sworn to try the cause. By swearing in the jurors individually before they were accepted as an entire panel, the trial court improperly restricted the right of the appellant to consider the jury panel as a whole when exercising his peremptory challenges.

In Bocanegra v. State, 303 So. 2d 429 (Fla. 2d DCA 1974), cert. dismissed, 308 So. 2d 111 (Fla.1975), this court held that although the better practice is to postpone the swearing in chief of the jurors until the full panel is obtained, absent a showing of abuse of discretion, it is not error to swear the jurors individually rather than as a complete jury. In Tedder v. Video Electronics, Inc., 491 So. 2d 533 (Fla. 1986), the supreme court, however, stated that the only fair scheme in the handling of jury selection is to allow the parties to exercise their challenges singularly, alternately, and orally so that, before a party exercises a peremptory challenge, he has before him the full panel from which the challenge is to be made. The court then went on to say that this is not only the better practice but should be the rule. The Tedder court, accordingly, established the rule that absent exceptional circumstances a trial judge may not selectively swear individual jurors prior to the opportunity of counsel to view as a whole the entire panel from which challenges are to be made.

This newly established rule, however, does not benefit appellant in this case because the Tedder court did not eliminate a party's responsibility for properly preserving this issue for appeal. Not only did the appellant here fail to object to the procedure invoked by the trial court, he also did not attempt to exercise a challenge on any juror after that juror was sworn to try the cause. In Rivers v. State, 458 So. 2d 762 (Fla.1984), cited by the court in Tedder, the court held that although the trial court had erred by requiring the parties to accept any prospective jurors not challenged at the first opportunity, the issue had not been properly preserved for appeal, because defense counsel, as in this case, did not subsequently attempt to back strike any prospective juror. See also, Johnston v. State, 497 So. 2d 863 (Fla.1986).

AFFIRMED.

SCHEB, A.C.J., and FRANK, J., concur.


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Citator

Cited By

  • Rollins v. State, 707 So. 2d 823 (Fla. 3d DCA 1998)
    …la. 3d DCA 1997); Fruetel v. State, 638 So. 2d 966, 972 (Fla. 4th DCA 1994); Jones v. State, 582 So. 2d 110, 111 (Fla. 3d DCA), appeal dismissed, 592 So. 2d 681 (Fla.1991); Harris v. State, 564 So. 2d 1211, 1212 (Fla. 3d DCA 1990); Griffin v. State, 502 So. 2d 1350, 1352 (Fla. 2d DCA 1987); Scott v. State, 396 So. 2d 271, 271 (Fla. 3d DCA 1981); Williams v. State, 305 So. 2d 45, 46 (Fla. 1st DCA 1974). Rollins next argues that his habitual offender sentence imposed pursuant to section 775.084(l)(a), Florida S…
  • Szymanski v. Cardiovascular Assocs. of Lake Cnty., P.A, 62 So. 3d 649 (Fla. 5th DCA 2011)
    …ercise a preemp-tory challenge of one of the six panel members after the alternates were selected. For this proposition, they rely on cases such as Tedder, 491 So. 2d 533 Gonzalez v. Martinez, 897 So. 2d 525 (Fla. 3d DCA 2005), and Griffin v. State, 502 So. 2d 1350 (Fla. 2d DCA 1987), but these cases have no application in a case like this one. Here, at Appellee’s instance, the court adopted a procedure that deprived Appellants of a valuable right by offering them only two choices, neither of which was proper.…

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