JERRY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry Davis was convicted of aggravated battery and sentenced to thirty years as a prison releasee reoffender and habitual felony offender. He appealed challenging the denial of his request to withdraw a peremptory challenge after jury selection and arguing his enhanced sentences violated the Sixth Amendment under Blakely and Booker. The appellate court affirmed on both issues.
The court affirmed the trial court's denial of the backstrike request, holding that while it is reversible error to deny a challenge when a party has not exhausted its peremptory challenges before jury is sworn, no error occurs when a party has exhausted all its peremptory challenges. The court also affirmed the enhanced sentences, finding no Sixth Amendment violation under Blakely, Booker, and Shepard.
[1] A trial court may deny a defendant's request to withdraw a peremptory challenge and "backstrike" a juror after the defense has exhausted all of its peremptory challenges,…
[2] A defendant's Sixth Amendment right to a jury trial is not violated by the imposition of habitual offender and prison releasee reoffender sentences.
Previewing 2 of 4 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“Although it is clearly reversible error to deny a challenge to a juror when the defendant has not exhausted all of his peremptory challenges prior to the jury's being sworn, that is not the case where, as here, a party has exhausted all of its peremptory challenges.”
Establishes the critical distinction between whether denial of a backstrike is reversible error based on whether the party has exhausted all peremptory challenges.
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Join FLexlaw to unlock all legal intelligenceFollowing jury selection and peremptory challenges by both parties, the defense had exhausted all ten of its peremptory challenges and the jury panel …
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SHAHOOD, J.
Following a jury trial, appellant, Jerry Davis, was found guilty, as charged, of aggravated battery and not guilty of robbery with a deadly weapon. He was adjudicated guilty and sentenced to thirty years in prison as a prison releasee reof-fender and a habitual felony offender. Appellant raises two issues on appeal. Initially, he argues that the trial court erred when it denied his request to “back-strike” a potential juror before the jury panel was sworn. Secondly, he argues that the habitual offender and prison re-leasee reoffender sentences imposed by the trial court were unconstitutional. We affirm as to both issues raised.
At trial, following voir dire, the parties conducted their peremptory challenges to the presumptive panel. During jury selection, the state used six of its ten peremptory strikes.1 The defense used all ten of its peremptory strikes. Thereafter, the jury panel and an alternate were accepted by both sides. Defense counsel then told the court that appellant wished to withdraw a peremptory challenge made on one juror and use it to strike another. The state objected and the trial court denied the request. The jury was then sworn.
The court’s rationale in denying the “backstrike” request was that the prosecutor’s strategy in utilizing peremptory challenges was based partially on the manner in which the defense exercised its peremptory challenges. The court, therefore, concluded that allowing the defendant to withdraw a challenge so late in the process would prejudice the state.
It is reversible error to deny a defendant his right to challenge a juror any time before the jury is sworn. Gilliam v. State, 514 So. 2d 1098, 1099 (Fla.1987). In our case, after the panel had been selected but prior to its being sworn, appellant sought to withdraw a peremptory previously exercised to strike one juror and use it, instead, on another juror who had been accepted. The defense had exhausted all of its peremptory challenges and did not request additional peremptory challenges from the trial court.
Although it is clearly reversible error to deny a challenge to a juror when the defendant has not exhausted all of his peremptory challenges prior to the jury’s being sworn, that is not the case where, as here, a party has exhausted all of its peremptory challenges. See Hunter v. State, 660 So. 2d 244 (Fla.1995). Under the facts of this case, we cannot say that the trial court erred in denying appellant’s request to withdraw a peremptory challenge and then backstrike a previously accepted juror. In his second issue, appellant argues that his prison releasee reoffender (PRR) and habitual felony offender sentences violate his Sixth Amendment right to a jury trial based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and its progeny, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We affirm as to this issue. See Gurley v. State, 906 So. 2d 1264, 1265 (Fla. 4th DCA 2005), and McBride v. State, 884 So. 2d 476, 477 (Fla. 4th DCA 2004).
Lastly, appellant argues that the “shotgun” notice of intent to declare him a habitual offender was inadequate. This argument has likewise been rejected, see Washington v. State, 895 So. 2d 1141, 1142 (Fla. 4th DCA 2005), and we decline appellant’s invitation to recede from Washington.
Affirmed.
STONE and KLEIN, JJ., concur. . Based on appellant’s charges, appellant and the state were entitled to ten peremptory challenges each. § 913.081(1)(a), Fla. Stat.
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McCray v. State, 220 So. 3d 1119 (Fla. 2017)…I don’t know how I can un-strike a strike because then that messes up everybody else’s decisions on what you struck or so. That’s our jury .... McCray, 199 So. 3d at 1007-08. The Fourth District held that, based on its precedent in Davis v. State, 922 So. 2d 454 (Fla. 4th DCA 2006), the trial court did not abuse its discretion in- denying McCray’s motion to “unstrike” Juror 2.5, which was a request to withdraw his last peremptory challenge of Juror 2.5 after he had exhausted his peremptory challenges and th…1 / 2
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McCRAY v. State, 199 So. 3d 1006 (Fla. 4th DCA 2016)…ng the defendant to “unstrike” Juror 2.5 in order to strike Juror 3.9, would have prejudiced the state. We present this opinion in three parts: (1) the voir dire and jury selection process; (2) our analysis based on our precedent in Davis v. State, 922 So. 2d 454 (Fla. 4th DCA 2006); and (3) our recognition of a possible conflict with McIntosh v. State, 743 So. 2d 155 (Fla. 3d DCA 1999). 1. The Voir Dire and Jury Selection Process During voir dire, the following discussions occurred with Juror 3.9: JUROR…1 / 2
Authorities Cited
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- United States v. Booker, 543 U.S. 220 (U.S. 2005)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005)
- Hunter v. State, 660 So. 2d 244 (Fla. 1995)
- McBRIDE v. State, 884 So. 2d 476 (Fla. 4th DCA 2004)
- Burley Gilliam, Jr. v. State, 514 So. 2d 1098 (Fla. 1987)
- Washington v. State, 895 So. 2d 1141 (Fla. 4th DCA 2005)
- O'Donnell v. Bellsouth Advertising & Publ'g Corp., 906 So. 2d 1264 (Fla. 4th DCA 2005)
- Gurley v. State, 906 So. 2d 1264 (Fla. 4th DCA 2005)