STEVEN GRABOW AND BERNARD GRABOW, APPELLANTS,
v.
ARNOLD LEHRER, AS GUARDIAN AD LITEM FOR THE APPELLEE RICHARD LEHRER, A MINOR, APPELLEES
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Plaintiffs appealed a jury verdict in a personal injury action, arguing the trial court erred by denying their request to exercise their final peremptory challenge after tendering the jury to defendants but before the jury was sworn. The court reversed, holding that the trial court committed reversible error by denying plaintiffs the right to use their remaining peremptory challenge.
It was reversible error for the trial court to deny plaintiffs the right to exercise their third peremptory challenge under these circumstances.
“We have considered appellants' contention in the light of the stipulation which shows a tender of the jury to the defendants for questioning and have concluded that it was reversible error for the trial court to deny plaintiffs the right to exercise their third peremptory challenge.”
The court's holding that denying plaintiffs their remaining peremptory challenge constituted reversible error.
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Join FLexlaw to unlock all legal intelligencePlaintiffs were allowed three peremptory challenges in voir dire and exercised two of them. After plaintiffs' attorneys tendered the jury panel to def…
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This is an appeal by plaintiffs below from a final judgment entered by the Circuit Court of Dade County in favor of the defendants following a jury verdict of not guilty in an action for personal injuries.
Plaintiffs seek reversal of the judgment and a new trial on the ground that the trial court erred to the prejudice of the plaintiffs in denying the request of the plaintiffs to exercise their remaining peremptory challenge prior to the time the jury was sworn.
The controlling facts upon which we must base our decision are contained in the following stipulation:
“COME NOW the plaintiffs and the defendant, by and through their undersigned attorneys, in accordance with Rule 3.6(h) and stipulate and agree that for all Appellate purposes and any other purposes that the record of the proceedings in the trial court for the trial of the above-styled cause shows the following:
“1. That this case was tried before a jury in the Circuit Court in Dade County, Florida.
“2. That the plaintiffs were allowed three peremptory challenges in their voir dire selection.
“3. That the plaintiffs exercised two peremptory challenges during their voir dire selection.
“4. That after the plaintiffs’ attorneys tendered the jury panel for questioning to the defendant’s attorney and after the defendant’s attorney accepted the jury but before the jury was sworn, the plaintiffs’ attorney attempted to exercise his one remaining unused peremptory challenge by requesting the Court that he be allowed to do so; however, the Court denied such request, holding that the jury had been tendered by the plaintiffs.
“5. That no reason was given by plaintiffs’ attorney as to why he desired to use his last peremptory challenge other than stating he desired to use such challenge before the jury was sworn.
“6. That the plaintiffs’ attorney was not allowed by the Court and was therefore unable to use his last remaining peremptory challenge before the jury was sworn.
“7. That the jury was sworn, the case tried and a verdict was returned in favor of the defendant.
“8. That the plaintiffs desire to appeal from the final judgment for the defendant, and to claim as reversible error the failure and refusal of the trial court to permit the plaintiffs to exercise their remaining peremptory challenge as set forth herein.”
We have considered appellants’ contention in the light of the stipulation which shows a tender of the jury to the defendants for questioning and have concluded that it was reversible error for the trial court to deny plaintiffs the right to exercise their third peremptory challenge. [Emphasis supplied.]
Reversed and remanded for a new trial.
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Fla. Rock Indus., Inc. v. United Bldg. Sys., Inc., 408 So. 2d 630 (Fla. 5th DCA 1981)…e jury was sworn, the attorney attempted to exercise his remaining peremptory, and the trial court denied this motion without giving any basis for the ruling. The appellate court accorded a new trial because of this error. See also Grabow v. Lehrer, 224 So. 2d 767 (Fla. 3d DCA 1969). Florida Rule of Civil Procedure 1.431, which deals with peremptory challenges, contains no requirement that a “reason” be established for the exercise of a peremptory challenge. A party litigant, whether plaintiff or defendant,…
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Saborit v. Worthy Deliford, 312 So. 2d 795 (Fla. 3d DCA 1975)…remptory challenge to a juror or jurors on the panel —as in fact occurred in this case. Refusal to allow plaintiffs’ attorney to exercise the peremptory challenges was error. Mann v. State, 23 Fla. 610, 3 So. 2d 207; Grabow v. Lehrer, Fla.App.1969, 224 So. 2d 767; Barker v. Randolph, Fla.App. 1970, 239 So. 2d 110, 113; Cuervo v. Garcia, Fla.App.1971, 246 So. 2d 579; Brown v. McArthur Dairies, Inc., Fla.App.1973, 280 So. 2d 520. Thus in Barker v. Randolph, supra, the court said: “It is not infrequent that th…
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Dobek v. ANS, 475 So. 2d 1266 (Fla. 4th DCA 1985)…at the jury was “accepted” but, thereafter, before the jury was sworn, attempted to use a remaining peremptory challenge. The court held, “The denial of the right to use a remaining peremptory challenge was clearly error.” See also Grabow v. Lehrer, 224 So. 2d 767 (Fla. 3d DCA 1969), and Carames v. Golden, 445 So. 2d 1140 (Fla. 3d DCA 1984). Appellee contends that the trial court did not err because the manner of jury selection permitted “backstriking” by either party. The term backstriking has been [*1268]…
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