DOMINIC JACKSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court vacated defendant's attempted first-degree felony murder conviction under State v. Gray authority, rejected reduction to lesser offense, and affirmed denial of peremptory challenge based on finding of racial motivation.
A conviction for attempted first-degree felony murder cannot be reduced to a lesser offense such as aggravated assault, and a trial court properly denied a peremptory challenge when the defendant's strike of a prospective juror was racially motivated.
[1] A conviction for attempted first-degree felony murder cannot be reduced to a lesser included offense when the statutory elements do not support such reduction.
[2] A trial court properly denies a peremptory challenge when the defendant's stated reason for striking a prospective juror is pretextual and the challenge is motivated by r…
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Join FLexlaw to unlock all legal intelligenceDominic Jackson, an African-American defendant, was convicted of attempted first-degree felony murder and other offenses. During jury selection, Jacks…
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PER CURIAM.
On the authority of State v. Gray, 654 So. 2d 552 (Fla.1995), we vacate the defendant’s conviction and sentence for attempted first degree felony murder and, in accordance with Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995), review granted, 668 So. 2d 604 (Fla.1996) and Jones v. State, 669 So. 2d 1094 (Fla. 3d DCA 1996), and cases cited, reject the state’s claim that the conviction may properly be reduced to a lesser offense — in this case, aggravated assault. We again certify to the Supreme Court the question of great public importance stated in Wilson, 660 So. 2d at 1069.
The only claim of error in the defendant’s numerous other convictions is that the trial judge erred in disallowing an attempted defense peremptory challenge. We disagree because the record supports the conclusions that the African-American defendant’s third challenge of a Hispanic prospective juror was racially motivated, see Betancourt v. State, 650 So. 2d 1021 (Fla. 3d DCA 1995), review denied, 659 So. 2d 272 (Fla.1995), and that the proffered reason for the strike was pretextual. See State v. Slappy, 522 So. 2d 18 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).
Affirmed in part, vacated in part, question certified.
In our opinion of June 26,1996, we vacated outright the defendant’s attempted first degree felony murder conviction, holding, on the authority of Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995), that there could be no lesser offense of that now-nonexistent charge. See State v. Gray, 654 So. 2d 552 (Fla.1995). Almost immediately thereafter, in State v. Wilson, — So. 2d - [1996 WL 365715] (Fla. Case no. 86,680, opinion filed, July 3, 1996) [21 FLW S292], the Supreme Court specifically held to the contrary. In accordance with that decision, as to the attempted felony murder count, the cause is remanded for trial on the lesser offense upon which the jury was instructed below, aggravated assault.1 As held in the original opinion, the defendant’s other convictions are affirmed.
Affirmed in part, reversed in part and remanded with directions.
. The certification is of course vacated.
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Citator
Cited By
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Barr v. State, 675 So. 2d 1046 (Fla. 3d DCA 1996)…PER CURIAM. We find no error in the trial court’s disal-lowance of the black defendant’s challenge to a Hispanic juror, Jackson v. State, 676 So. 2d 1033 (Fla. 3d DCA 1996), or its allowance of a prosecution challenge to a black juror who had previously been arrested and jailed. Martinez v. State, 664 So. 2d 1034 (Fla. 4th DCA 1995); Wilkins v. State, 659 So. 2d 1273 (Fla. 4th DCA 1995); Miller v. St…
Authorities Cited
- State v. Slappy, 522 So. 2d 18 (Fla. 1988)
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- 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)
- Eduards Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995)
- Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA 1995)
- Betancourt v. State, 650 So. 2d 1021 (Fla. 3d DCA 1995)
- Jones v. State, 669 So. 2d 1094 (Fla. 3d DCA 1996)