BRIAN VERDELOTTI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Brian Verdelotti appealed his convictions for cocaine trafficking, cannabis possession, and diazepam possession, challenging both the peremptory exclusion of a black juror and his sentencing enhancement. The Florida District Court of Appeal affirmed all convictions and the sentence.
The court affirmed that the state's peremptory challenge was permissible because the defendant failed to demonstrate that the challenge was based solely on race, no pattern of exclusion of minorities was shown, and one black juror remained on the jury with other black jurors available. The court also affirmed that the one-cell sentencing bump-up based on probation revocation was proper sentencing practice.
[1] A defendant challenging a peremptory strike based on race must demonstrate a strong likelihood that the juror was challenged solely because of race.
[2] A pattern of excluding a minority group is a factor in determining whether a peremptory strike was racially motivated.
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Join FLexlaw to unlock all legal intelligence“there is a strong likelihood that [the subject juror has] been challenged solely because of ... race”
Establishes the standard the defendant must meet to prove improper peremptory challenge based on race
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of trafficking cocaine (less than 400 grams), possessing cannabis, and possessing diazepam. During jury selection, the state e…
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LEHAN, Judge.
Defendant appeals his convictions for trafficking in cocaine of less than 400 grams, in violation of section 893.135(l)(b)2, Florida Statutes (1985); possession of cannabis, in violation of 893.13(l)(e); and possession of diazepam, also in violation of 893.13(l)(e). Defendant also appeals his sentence for the trafficking conviction on the basis that that sentence improperly exceeded the guidelines. We affirm.
Defendant, who is white, first contends that the trial court erred in permitting the state to peremptorily exclude, over defendant’s objection, one black juror. We do not agree. Defendant did not carry his burden of showing that “there is a strong likelihood that [the subject juror has] been challenged solely because of ... race.” State v. Neil, 457 So. 2d 481, 486 (Fla.1984), as quoted in Riggins v. State, 557 So. 2d 185 (Fla. 3d DCA 1990).
See also Reed v. State, 560 So. 2d 203 (Fla.1990) There was no showing by defendant that “the state [has] engage[d] in a pattern of excluding a minority_” State v. Slappy, 522 So. 2d 18, 28 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).
The six person jury included one black juror. At the time the state exercised its foregoing peremptory challenge, at least two black jurors remained on the venire. Compare Bryant v. State, Nos. 71,356, 71,357, 71,258, 71,355 (Fla. Mar. 29, 1990) [15 F.L.W. S178, 179] (state had peremptorily challenged five prospective black jurors out of its first seven peremptory challenges); Foster v. State, 557 So. 2d 634 (Fla. 3d DCA 1990) (state had peremptorily' challenged three of five prospective black jurors); Timmons v. State, 548 So. 2d 255, 257 (Fla. 2d DCA 1989) (state had peremptorily challenged the sole prospective black juror on the venire after another black juror had been excused for cause); Mack v. State, 545 So. 2d 489 (Fla. 2d DCA 1989) (state had peremptorily challenged three of five black prospective jurors); Sampson v. State, 542 So. 2d 434, 435 (Fla. 4th DCA 1989) (state used its first two peremptory challenges against two of the “very few minorities on the panel”).
“It is no less a commitment to the eradication of racism from the judicial process ... to apply a more cautious approach than one which assumes a racist motivation behind every peremptory challenge.” Hill v. State, 547 So. 2d 175, 177 (Fla. 4th DCA 1989) (Hersey, C.J., dissenting), as quoted in Timmons, 548 So. 2d at 256-57. “In trying to achieve the delicate balance between eliminating racial prejudice and the right to exercise peremptory challenges, we must necessarily rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a ‘feel’ for what is going on in the jury selection process.” Reed, 560 So. 2d at 206.
Defendant’s other contention is that the trial court erred in including in the sentence for trafficking a one cell bump-up on the basis of the revocation of his probation to which defendant had been sentenced for two prior offenses. We disagree with that contention. See Frick v. State, 510 So. 2d 1077 (Fla. 2d DCA 1987) (en banc). We also disagree with defendant’s argument that Frick has been undermined by Lambert v. State, 545 So. 2d 838 (Fla.1989).
Affirmed.
SCHOONOVER, A.C.J., and PARKER, J., concur.
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Green v. State, 572 So. 2d 543 (Fla. 2d DCA 1990)…tate, 566 So. 2d 859 (Fla. 1st DCA 1990) (that the state peremptorily challenged the first black person on the jury panel was insufficient to shift to the state the burden to show lack of racial motivation in its challenge); and Verdelotti v. State, 560 So. 2d 1328 (Fla.2d DCA 1990) (that the state peremptorily challenged one out of three prospective black jurors did not establish a prima facie case of racial discrimination so as to shift to the state the burden to show lack of racial motivation in its perempt…
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Gonzalez v. State, 569 So. 2d 782 (Fla. 4th DCA 1990)…d 255 (1987). The state is not required to provide any additional explanation. See Reed v. State, 560 So. 2d 203 (Fla.1990); Smith v. State, 562 So. 2d 787 (Fla. 1st DCA 1990); Davis v. State, 560 So. 2d 1346 (Fla. 3d DCA 1990); Verdelotti v. State, 560 So. 2d 1328 (Fla.2d DCA 1990); Adams v. State, 559 So. 2d 1293 (Fla. 3d [*784] DCA), dismissed, 564 So. 2d 488 (1990); Stephens v. State, 559 So. 2d 687 (Fla. 1st DCA 1990); Knight v. State, 559 So. 2d 327 (Fla. 1st DCA 1990). Third-degree murder, a second-deg…
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Ebony Hall v. Hosain Daee, M.D., 570 So. 2d 296 (Fla. 3d DCA 1990)…t err in refusing to inquire into state’s motives for challenging black juror, where trial court found the defendant did not meet his burden of showing there was a strong likelihood that the state’s challenge was based on race); Verdelotti v. State, 560 So. 2d 1328 (Fla. 2d DCA 1990) (trial court did not err in permitting state to peremptorily exclude, over defendant’s objection, one black juror, where defendant did not carry his burden of showing that there was a strong likelihood that the juror was challenge…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- State v. Slappy, 522 So. 2d 18 (Fla. 1988)
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Grover Reed v. State, 560 So. 2d 203 (Fla. 1990)
- Men's Int'l Prof'l Tennis Council v. Volvo N. Am. Corp., 487 U.S. 1219 (U.S. 1988)
- Waste Mgmt. of Wis., Inc. v. Wis. Dep't of Natural Res., 487 U.S. 1219 (U.S. 1988)
- Foster v. State, 557 So. 2d 634 (Fla. 3d DCA 1990)
- Hill v. State, 547 So. 2d 175 (Fla. 4th DCA 1989)
- Talmedge Riggins v. State, 557 So. 2d 185 (Fla. 3d DCA 1990)
- Sampson v. State, 542 So. 2d 434 (Fla. 4th DCA 1989)