CHRISTINE HOLLY BARNES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We reverse and remand for a new trial based on the authority of Wright v. State, 592 So. 2d 1123 (Fla. 3d DCA 1991). We certify the following question, as stated in Jefferson v. State, 584 So. 2d 123 (Fla. 4th DCA 1991), and Wright, as one of great public importance:
WHERE THE TRIAL COURT FINDS THAT A PEREMPTORY CHALLENGE IS BASED UPON RACIAL BIAS, IS THE SOLE REMEDY T,0 DISMISS THE JURY POOL AND START VOIR DIRE OVER WITH A NEW JURY POOL, OR MAY THE TRIAL COURT EXERCISE ITS DISCRETION TO DENY THE PEREMPTORY CHALLENGE IF IT CURES THE DISCRIMINATORY TAINT; FOR EXAMPLE, MUST THE JURY PANEL BE STRICKEN IF THE DISCRIMINATORY CHALLENGE HAS BEEN MADE OUTSIDE ITS PRESENCE?
In light of our decision, we do not need to reach the remaining points raised on appeal by the defendant.
Reversed and remanded for a new trial.
LEVY and GODERICH, JJ., concur.
FERGUSON, Judge
(concurring).
In Carter v. State, 550 So. 2d 1130 (Fla. 3d DCA), rev. denied, 553 So. 2d 1164 (1989), this court gave an impractical “yes” answer to the second part of the certified question relying, purportedly, on State v. Neil, 457 So. 2d 481 (Fla.1984). The fourth district followed Carter without an independent analysis. Mazaheritehrani v. Brooks, 573 So. 2d 925 (Fla. 4th DCA 1990).
We applied Carter in the heralded case of Lozano v. State, 584 So. 2d 19 (Fla. 3d DCA 1991). In Wright v. State, cited in the majority opinion, we again dutifully followed Carter, with an otherwise thoughtful observation by Judge Nesbitt that Carter may be impractical and legally indefensible. It was noted, correctly, that Carter is distinguishable from Neil on the procedural facts. Federal opinions uniformly hold contrary to Carter. See Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); United States v. Forbes, 816 F. 2d 1006 (5th Cir.1987); United States v. Robinson, 421 F.Supp. 467 (D.Conn.1976), mandamus granted sub nom., United States v. Newman, 549 F. 2d 240 (2d Cir.1977).
Review was granted in Mazaheritehra-ni, which was argued to the Supreme Court of Florida on December 4, 1991. A decision in that case will answer the question certified.
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Barnes v. State, 620 So. 2d 243 (Fla. 3d DCA 1993)…PER CURIAM. This case is before us on remand from the Supreme Court of Florida for further consideration, State v. Barnes, 602 So. 2d 532 (Fla.1992), which quashed this court’s opinion in Barnes v. State, 592 So. 2d 1127 (Fla. 3d DCA 1992). The defense attempted to use two of its peremptory challenges to strike jurors Lawman and Weber. The State requested that the defense demonstrate its justifications for striking Lawman and Weber. The trial court conducted a Nei…
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State v. Barnes, 602 So. 2d 532 (Fla. 1992)…PER CURIAM. In Barnes v. State, 592 So. 2d 1127, 1128 (Fla.3d DCA 1992), the district court certified the following question as being of great public importance: Where the trial court finds that a peremptory challenge is based upon racial bias, is the sole remedy to dismiss the jury pool and st…
Authorities Cited (11 total)
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986)
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- Hernandez v. New York, 500 U.S. 352 (U.S. 1991)
- United States v. Forbes, 816 F.2d 1006 (5th Cir. 1987)
- United States v. Honorable Jon O. Newman, 549 F.2d 240 (2d Cir. 1977)
- Lozano v. State, 584 So. 2d 19 (Fla. 3d DCA 1991)
- Carter v. State, 550 So. 2d 1130 (Fla. 3d DCA 1989)
- Tillery v. State, 592 So. 2d 1123 (Fla. 1st DCA 1991)
- Wright v. State, 592 So. 2d 1123 (Fla. 3d DCA 1991)
- Masoud Mazaheritehrani v. Brooks, 573 So. 2d 925 (Fla. 4th DCA 1990)