FERNANDO HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Fernando Hernandez appealed his robbery conviction, arguing that the trial court committed reversible error by allowing the state to exercise peremptory challenges against Black prospective jurors based on race, by making anti-Hispanic comments during jury selection that prejudiced him, and by limiting his closing argument. The court reversed and remanded for a new trial based on the first two grounds.
The court reversed the conviction and remanded for a new trial, holding that the trial court committed reversible error by allowing race-based peremptory challenges against Black jurors and by making anti-Hispanic comments during voir dire. The court did not reach the third issue regarding the time limitation on closing argument, though noted it was substantial and should be reexamined on retrial.
[1] A defendant has standing to challenge the arbitrary exclusion of members of any race from jury service, regardless of the defendant's own race.
[2] A prima facie showing of discriminatory use of peremptory challenges is overcome only by a clear, specific, and non-pretextual explanation for excusing a juror.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A prima facie showing was made on this record that the peremptory challenges were exercised by the state on the above jurors solely because they were Black; moreover, the state failed to overcome this prima facie showing below because the explanation proffered as to why these jurors were excused was vague and unconvincing.”
Establishes the court's finding of race-based peremptory challenges and inadequate state explanation, constituting reversible error.
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Join FLexlaw to unlock all legal intelligenceFernando Hernandez, an Hispanic defendant who spoke little English and was provided a court interpreter, was convicted of robbery by jury verdict. Dur…
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PER CURIAM.
This is an appeal by the defendant Fernando Hernandez from a judgment of conviction and sentence for robbery which was entered below upon an adverse jury verdict. We reverse and remand for a new trial based on the following briefly stated legal analysis.
First, we conclude that the trial court committed reversible error in allowing the state, over a defense objection, to exercise peremptory challenges on two Black prospective jurors. A prima facie showing was made on this record that the peremptory challenges were exercised by the state on the above jurors solely because they were Black; moreover, the state failed to overcome this prima facie showing below because the explanation proffered as to why these jurors were excused was vague and unconvincing. State v. Slappy, 522 So. 2d 18 (Fla.), cert. denied, — U.S. -, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); State v. Neil, 457 So. 2d 481 (Fla.1984).
This result is not changed by the fact that the defendant in the instant case is Hispanic, rather than Black, because “[a] defendant, whatever his race, has standing to challenge the arbitrary exclusion of members of any race for grand or petit jury service.” Del Sol v. State, 537 So. 2d 693 (Fla. 3d DCA 1989); Castillo v. State, 466 So. 2d 7, 8 n. 1 (Fla. 3d DCA 1985) (following Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)), approved in part, quashed in part on other grounds, 486 So. 2d 565 (Fla.1986).
We certify, however, that this latter holding conflicts with Kibler v. State, 501 So. 2d 76 (Fla. 5th DCA 1987).
Second, we conclude that the trial judge committed reversible error by making certain anti-Hispanic comments during voir dire of the jury. The judge criticized Hispanic Americans for failing to learn and speak English well; he also told a critical anecdote concerning an Hispanic defendant in a traffic case who falsely claimed he could not speak English. These comments greatly prejudiced the defendant herein because (a) he, too, was an Hispanic American who claimed he could speak little English and was provided with a court interpreter, and yet (b) a police detective testified that the defendant gave a full confession to him in English. Saintjour v. State, 534 So. 2d 874 (Fla. 3d DCA 1988); see Pollard v. State, 444 So. 2d 561, 563 (Fla. 2d DCA 1984); Lester v. State, 458 So. 2d 1194, 1195 (Fla. 1st DCA 1984).
Third, in view of the above, it is not necessary to reach the defendant’s final contention that it was reversible error to limit the defendant’s final argument to the jury to twenty minutes. The trial court, however, may wish to reexamine its ruling upon retrial of this cause as,, in our view, the defendant’s claim here is a substantial one. See Foster v. State, 464 So. 2d 1214, 1215-17 (Fla. 3d DCA 1984), and cases collected.
The final judgment of conviction and sentence under review is reversed, and the cause is remanded to the trial court for a new trial.
REVERSED AND REMANDED.
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Citator
Cited By
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Moriyon v. State, 543 So. 2d 379 (Fla. 3d DCA 1989)…493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)), approved in part, quashed in part on other grounds, 486 So. 2d 565 (Fla.1986); Rodriguez v. State, 539 So. 2d 612 (Fla. 3d DCA 1989); Parrish v. State, 540 So. 2d 870 (Fla. 3d DCA 1989); Hernandez v. State, 538 So. 2d 521 (Fla. 3d DCA 1989); Del Sol v. State, 537 So. 2d 693 (Fla. 3d DCA 1989). The Florida supreme court limited the impact of Neil to “peremptory challenges of distinctive racial groups solely on the basis of race,” reserving for another day the question…
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Rodriguez v. State, 539 So. 2d 612 (Fla. 3d DCA 1989)…1989), requires a reversal and remand for a new trial, we reverse the final judgments of conviction and sentences under review and remand the cause to the trial court for a new trial based on the authority of Del Sol, as well as Hernandez v. State, 538 So. 2d 521 (Fla. 3d DCA 1989), which follows Del Sol We recognize that the state does not agree with Del Sol and Hernandez and may wish to pursue further appellate review in this case. To facilitate such review, we certify that our decision in this case con…
Authorities Cited (12 total)
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- State v. Slappy, 522 So. 2d 18 (Fla. 1988)
- Peters v. Kiff, 407 U.S. 493 (U.S. 1972)
- State v. Castillo, 486 So. 2d 565 (Fla. 1986)
- Kibler v. State, 501 So. 2d 76 (Fla. 5th DCA 1987)
- Foster v. State, 464 So. 2d 1214 (Fla. 3d DCA 1984)
- Herschel N. Pollard, Jr. v. State, 444 So. 2d 561 (Fla. 2d DCA 1984)
- Moore v. State, 537 So. 2d 693 (Fla. 1st DCA 1989)
- Carter v. Gottleb, 466 So. 2d 7 (Fla. 3d DCA 1985)
- Lester v. State, 458 So. 2d 1194 (Fla. 1st DCA 1984)