KEVIN MACK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court's denial of defendant's peremptory challenges before jury was sworn constitutes per se reversible error requiring reversal and remand for new trial.
A trial court's refusal to allow a defendant to exercise peremptory challenges before the jury is sworn constitutes per se reversible error.
[1] A trial court's denial of a defendant's right to exercise peremptory challenges against prospective jurors prior to the jury being sworn constitutes per se reversible err…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with sale of cocaine, possession of cocaine, and possession of cannabis. The jury was selected one day but not sworn; the next d…
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DIAMANTIS, Judge.
Appellant appeals his convictions for sale of cocaine,1 possession of cocaine,2 and possession of cannabis,3 claiming that the trial court erred in refusing to allow him to strike two prospective jurors before the jury was sworn. We agree and, therefore, reverse and remand for a new trial.
The jury was selected one day but was not sworn. The next day, when appellant attempted to strike two jurors by exercising peremptory challenges, the trial court refused to allow the back-strikes on the basis that there were no other available jurors. Relying on Jones v. State, 332 So. 2d 615 (Fla.1976), the state contends that such error was harmless. In Gilliam v. State, 514 So. 2d 1098 (Fla.1987), however, the supreme court specifically receded from Jones and held that the trial court’s denial of a defendant’s right to challenge any juror prior to the jury being sworn constitutes per se reversible error. See also Lewis v. State, 593 So. 2d 1195 (Fla. 4th DCA 1992); Telemaque v. State, 591 So. 2d 675 (Fla. 3d DCA 1991); Johnson v. State, 565 So. 2d 911 (Fla. 1st DCA 1990); Shelby v. State, 541 So. 2d 1219 (Fla. 2d DCA 1989); Fla.R.Crim.P. 3.310.
REVERSED and REMANDED.
GRIFFIN and THOMPSON, JJ., concur. . § 893.13(l)(a)l, Fla.Stat. (1991).
. §§ 893.03(2)(a)4, 893.13(l)(f), Fla.Stat. (1991).
.§§ 893.13(l)(f), 893.13(l)(g), Fla.Stat. (1991).
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Citator
Cited By
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Tony deAndre Smith v. State, 662 So. 2d 1336 (Fla. 2d DCA 1995)…ished precedent to reverse appellant’s conviction and resulting sentence and to remand for a new trial. Reversed and remanded for new trial. RYDER, A.C.J., and ALTENBERND, J., concur. . Gilliam v. State, 514 So. 2d 1098 (Fla.1987); Mack v. State, 620 So. 2d 804 (Fla. 5th DCA 1993); Williams v. State, 619 So. 2d 487 (Fla. 1st DCA 1993); Morgan v. State, 603 So. 2d 142 (Fla. 2d DCA 1992); Telemaque v. State, 591 So. 2d 675 (Fla. 3d DCA 1991); Cure v. State, 564 So. 2d 1251 (Fla. 4th DCA 1990). . State v. Ne…
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State v. Page-Martin, 135 So. 3d 491 (Fla. 2d DCA 2014)…edder v. Video Elecs., Inc., 491 So. 2d 533, 534 (Fla.1986).2 These principles recognize that “an essential component of the right to trial by jury” is “the right to view the panel as a whole before the jury is sworn.” Id. at 535. In Mack v. State, 620 So. 2d 804, 804 (Fla. 5th DCA 1993), the jury was selected one day but was not sworn; the following day, when the defendant attempted to back strike two jurors by exercising peremptory challenges, “the trial court refused to allow the back[ jstrikes on the bas…
Authorities Cited
- Jones v. State, 332 So. 2d 615 (Fla. 1976)
- Burley Gilliam, Jr. v. State, 514 So. 2d 1098 (Fla. 1987)
- Shelby v. State, 541 So. 2d 1219 (Fla. 2d DCA 1989)
- Telemaque v. State, 591 So. 2d 675 (Fla. 3d DCA 1991)
- Johnson v. State, 565 So. 2d 911 (Fla. 1st DCA 1990)
- Chestnut v. Okaloosa Cnty. Bd. OF Cnty. Comm'rs & Hewitt, 593 So. 2d 1195 (Fla. 1st DCA 1992)