CHARLES EDWARD CARTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Charles Edward Carter appeals his convictions for aggravated battery, robbery, kidnapping, attempted murder, and armed burglary, challenging the trial court's dismissal of the entire venire panel after finding racial discrimination in jury selection and the imposition of enhanced sentences. The Florida Third District Court of Appeal affirms both the conviction and sentencing.
The trial court properly dismissed the entire venire panel as required by State v. Neil, and the departure sentences were affirmed because the particular vulnerability of the victim, including injuries that rendered her more vulnerable to subsequent attacks, is a valid reason to depart from sentencing guidelines.
[1] A trial court must dismiss the entire jury pool and start voir dire anew when a party has been challenging prospective jurors solely on the basis of race.
[2] The particular vulnerability of a victim is a valid reason for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“If the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool.”
Establishes the mandatory rule from State v. Neil requiring dismissal of the entire venire panel upon finding race-based peremptory challenges
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Join FLexlaw to unlock all legal intelligenceThe state exercised peremptory challenges to excuse two black venire members. Upon Carter's objection, the trial court conducted an inquiry and found …
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JORGENSON, Judge.
Charles Edward Carter appeals from judgments of conviction and sentences for aggravated battery, robbery with a deadly weapon, kidnapping with a weapon, attempted first-degree murder, and armed burglary of an occupied vehicle, with an assault and battery. We affirm.
At voir dire, the state exercised peremptory challenges to excuse two black venire-members. Upon defendant’s objection to the challenges, the trial court conducted an inquiry pursuant to State v. Neil, 457 So. 2d 481 (Fla.1984). The trial court found that the potential jurors had been wrongfully excluded on the basis of race, sustained defendant’s objection to their dismissal, and dismissed the entire venire panel.
On appeal, Carter contends that the trial court erred in dismissing the entire venire panel and that, instead, the trial court should have allowed the jurors already selected, plus the two illegally challenged jurors, to hear the case. We disagree. In Neil the Florida supreme court unequivocally stated: “If the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool.” 457 So. 2d at 487. Therefore, the trial court had no choice but to dismiss the entire venire panel and begin the jury selection process anew.1
Carter also appeals from the departure sentences imposed by the trial court. We affirm the sentences imposed. In its written reasons for departing upwards from the sentencing guidelines, the trial court stated that the vulnerability of the victim supported enhancement of the sentence. The particular vulnerability of a victim is a valid reason for departing from the sentencing guidelines. Orange v. State, 535 So. 2d 691 (Fla. 3d DCA 1988). Here, the record supports the trial court’s finding that Carter’s victim was particularly vulnerable to the series of vicious attacks she suffered. Carter’s victim was significantly smaller than her assailant and was, thus, especially vulnerable when the crime commenced. Moreover, when the victim attempted to escape from Carter after he first assaulted her, Carter yanked her by her pony tail and broke her neck. Carter continued to brutalize his now-paralyzed victim and left her for dead in a canal. The victim could not swim but survived despite her grave injuries. We explicitly hold that a trial court may depart from the sentencing guidelines with a finding that an injury inflicted by the defendant rendered the victim particularly vulnerable to subsequent injuries suffered at the hands of the defendant during the criminal episode.
Affirmed.
. We believe that a trial court should have the discretion to cure a discriminatory challenge by means other than dismissal of the entire panel. However, this court and the trial courts are bound by the clear language of Neil, absent directions otherwise from the Florida supreme court.
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Citator
Cited By (12 total)
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Lozano v. State, 584 So. 2d 19 (Fla. 3d DCA 1991)…smissing the jury pool and beginning voir dire again with a new venire, as required by the present state of the law of Florida. State v. Neil, 457 So. 2d 481 (Fla.1984); Mazaheritehrani v. Brooks, 573 So. 2d 925 (Fla. 4th DCA 1990); Carter v. State, 550 So. 2d 1130 (Fla. 3d DCA), rev. denied, 553 So. 2d 1164 (Fla.1989). . We note, however, that the State opened the door to the otherwise excludable evidence when, in its rebuttal, the State twice asserted that Blanchard had committed no crime. Nevertheless, the…
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Wright v. State, 592 So. 2d 1123 (Fla. 3d DCA 1991)…an early stage of the proceedings. Neil, 457 So. 2d at 486 n. 9. . Unfortunately, other opinions discussing this issue do not describe the jury selection methods the trial courts employed. Thus, this dissent is not in conflict with Carter v. State, 550 So. 2d 1130 (Fla. 3d DCA 1989).…1 / 3
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Masoud Mazaheritehrani v. Brooks, 573 So. 2d 925 (Fla. 4th DCA 1990)…cially motivated, the trial court disallowed the challenges. We reverse. The proper remedy under State v. Neil, 457 So. 2d 481 (Fla.1984), was to dismiss the jury pool and “start voir dire over with a new pool.” Id. at 487. See also Carter v. State, 550 So. 2d 1130 (Fla.3d DCA), rev. denied, 553 So. 2d 1164 (1989). REVERSED AND REMANDED. HERSEY, C.J., DELL and GUNTHER, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- Orange v. State, 535 So. 2d 691 (Fla. 3d DCA 1988)