SCOTT EDWARD AUSTING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Scott Austing appeals the denial of his Rule 3.850 motion for ineffective assistance of counsel, challenging his trial counsel's failure to preserve for appellate review a trial court's erroneous denial of a peremptory challenge. The appellate court reversed, holding that the trial court's error in denying the peremptory challenge was per se reversible and that counsel's failure to preserve it constituted ineffective assistance meeting the Strickland test.
The trial court's denial of the peremptory challenge was per se reversible error, and because trial counsel failed to preserve this error for appeal, counsel was ineffective under Strickland. The appellate court reversed and remanded for a new trial.
[1] A criminal defendant has a right to peremptorily challenge a juror at any time before the juror is sworn in chief.
[2] A trial court may permit a peremptory challenge to be made after a juror is sworn but before any evidence is presented, upon good cause shown.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court's erroneous denial of Austing's peremptory challenge was per se reversible error, and, if properly preserved, would have resulted in a reversal by this court on direct appeal.”
Establishes that the trial court's denial of the peremptory challenge constituted per se reversible error regardless of outcome.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring jury selection, Austing's counsel sought to exercise a peremptory challenge against prospective juror Ms. Bronson, who disclosed her cousin was…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Per Se Reversible Error cases and more on FLexlaw
COBB, J.
This is an appeal from the denial of a 3.850 motion based upon some 19 grounds. The dispositive one is the allegation that the appellant Austing’s trial counsel failed to preserve for appellate review the trial court’s denial of his peremptory challenge of a prospective juror. At trial, Austing’s counsel sought to exercise a peremptory challenge against a prospective juror, Ms. Bronson, who had responded on voir dire that her cousin was a circuit judge in Orange County. When the state demanded that defense counsel provide a nonracial basis for the challenge, the latter responded, inter alia, as follows:
I peremptorily excused her because she’s got a cousin who is a judge, and knowing Judge Bronson, my gut feeling was she may have had some serious input. He’s a very stern individual. If she’s anything like Judge Bronson, there’s a good chance she will be opposed to our defense.
The trial judge denied the challenge on the basis that the stated reason was not race or gender-neutral (even though gender had not been raised), and Ms. Bronson served on the jury which convicted Aust-ing. At the 3.850 motion hearing the judge apparently recognized that the trial judge had erred in finding that the stated reason for the challenge was not a neutral one and that the error had not been preserved for appeal, but denied the 3.850 motion on the following basis:
[Tjhere is no showing sufficient to find that this would have changed the outcome. With five other jurors there is no showing that another juror would have created at best a hung jury.
In other words, the motion judge determined that the error was harmless.1
The finding below in regard to harmless error was wrong because, of course, there can never be a showing as to what would have occurred with a different jury. This was candidly conceded by the state at oral argument for this appeal. The trial court’s erroneous denial of Austing’s peremptory challenge was per se reversible error, and, if properly preserved, would have resulted in a reversal by this court on direct appeal. See Dwyer v. State, 776 So. 2d 1082 (Fla. 4th DCA 2001); Vaz v. State, 626 So. 2d 1022 (Fla. 3d DCA 1993). Therefore, it is apodictic that the result would have been different — ie., reversal on appeal — had trial counsel been effective; therefore, the two-pronged Strickland
test has been met.
REVERSED AND REMANDED FOR NEW TRIAL.
SHARP, W. and PALMER, JJ., concur. . There is no indication that there was any strategy associated with defense counsel's failure to timely renew his objection to the jury as impaneled. Indeed, any such strategy abandoning a built-in reversal on appeal would have been nonsensical. Defense counsel simply erred in believing he had preserved his objection, as found by the hearing judge.
. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Carratelli v. State, 961 So. 2d 312 (Fla. 2007)…ld that a defendant establishes prejudice under Strickland by proving that a biased juror served on the jury. See Carratelli v. State, 915 So. 2d 1256 (Fla. 4th DCA 2005) (en banc) (Carratelli II). The court certified conflict with Austing v. State, 804 So. 2d 603 (Fla. 5th DCA 2002). That case held that the defendant must show only that a reasonable doubt existed about the juror’s impartiality, which is the same standard used on direct appeal. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; see als…
-
Carratelli v. State, 915 So. 2d 1256 (Fla. 4th DCA 2005)…proceeding; the case should not be read to require that a deficiency in an attorney’s trial performance be evaluated for prejudice in terms of the effect on a direct appeal, instead of on the trial itself. We certify conflict with Austing v. State, 804 So. 2d 603 (Fla. 5th DCA 2002). That case involved a postconviction relief motion which contended that defense counsel failed to preserve the issue of the state’s erroneous Neil objection to the defendant’s exercise of a peremptory challenge. The fifth distric…
-
King v. State, 211 So. 3d 866 (Fla. 2017)…lt. Id. at 323-34. King asserts that Carratelli is distinguishable because Carratelli involved cause challenges, not peremptory strikes. However, the Court accepted jurisdiction in Carratelli based on conflict with the decision in Austing v. State, 804 So. 2d 603 [*888] (Fla. 5th DCA 2002), which concerned peremptory strikes. Carratelli, 961 So. 2d at 317. In Austing, the Fifth District Court of Appeal had reached a similar conclusion as the Eleventh Circuit in Davis that the prejudice resulting from the fai…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- VAZ v. State, 626 So. 2d 1022 (Fla. 3d DCA 1993)
- Wade v. State, 776 So. 2d 1082 (Fla. 3d DCA 2001)