JIMMIE RALPH KNEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmie Ralph Knee was convicted of robbery and sentenced to fifteen years imprisonment. The Florida Fourth District Court of Appeal reversed and remanded the case because the trial court erroneously denied Knee's peremptory challenge to a juror before the jury was sworn in chief.
The trial court erred in denying the peremptory challenge to Sonnenberg because the challenge was exercised prior to the jury being sworn in chief, and Florida law establishes that a criminal defendant has an absolute right to peremptorily challenge a juror at any time before the juror is sworn in chief.
[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.
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Join FLexlaw to unlock all legal intelligence“The law is well settled in Florida that a criminal defendant has a right to peremptorily challenge a juror at any time before the juror is sworn in chief.”
Establishes the fundamental legal principle that defendants have an absolute right to peremptory challenges before jury is sworn
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Join FLexlaw to unlock all legal intelligenceKnee was charged with robbing a Food Fair grocery store on February 26, 1973. After a jury trial, Knee was convicted and sentenced to fifteen years in…
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CROSS, Judge.
Appellant-defendant, Jimmie Ralph Knee, appeals a judgment of conviction and sentence for robbery. We reverse.
Jimmie Ralph Knee, was charged by information for the robbery of a Food Fair grocery store that occurred on February 26, 1973. Trial was by jury. The jury found the defendant guilty of the robbery. The trial court entered judgment accordingly and sentenced the defendant to fifteen years in prison. It is from this judgment and sentence that the defendant appeals.
The primary question for our determination is whether the trial court erred in denying defendant’s peremptory challenge to a juror during voir dire examination.
The law is well settled in Florida that a criminal defendant has a right to peremptorily challenge a juror at any time before the juror is sworn in chief. 20 Fla.Jur., Jury § 93. Ellis v. State, 25 Fla. 702, 6 So. 768 (1889); Bradham v. State, 41 Fla. 541, 26 So. 730 (1899); Myers v. State, 43 Fla. 500, 31 So. 275 (1901); Wolf v. State, 72 Fla. 572, 73 So. 740 (1917); Kennick v. State, 107 So. 2d 59 (Fla.App.1958). This is totally consistent with Rule 3.310, Fla.RCrP, 33 F.S.A. (1971), which provides that a challenge to an individual prospective juror, whether for cause or peremptorily, may be exercised only before the juror is sworn to try the case, except that upon good cause shown, the court may permit such challenge to be made after the juror is sworn but before any evidence is presented.
In the instant case, the trial court directed general collective questions on voir dire to a panel of six prospective jurors (Mar-asco, Dennis, McCaskill, McCleary, Weber, and Balón). The prosecutor made individual inquiry and accepted the jury. Defense counsel excused venireman Mc-Cleary. Nancy Caudle was then called as a prospective juror. Questioning by the prosecutor ensued. The prosecutor accepted the panel. Defense counsel upon inquiry excused Marasco. Maurice Sonnen-berg replaced Marasco. After questioning Sonnenberg, the prosecutor accepted the jury. Defense counsel excused venireman McCaskill. Frank Michtich was called to replace McCaskill in the jury box. Inquiry was conducted by the prosecutor who again accepted the panel. Defense counsel excused Michtich. The trial court then called a conference at the bench and announced that he would only allow counsel for the respective parties to challenge a new person called to the jury box, not the five persons (Sonnenberg, Dennis, Caudle, Weber and Balón) in the jury box at the time of the court’s ruling. Defense counsel objected to the ruling.
Various prospective jurors were called to occupy the remaining seat in the jury box. Voir dire by counsel continued. During such questioning the trial court permitted further inquiry of the five veniremen previously seated in the jury box. Defense counsel subsequently sought to exercise one of his peremptory challenges to excuse venireman Sonnenberg. The peremptory challenge to excuse Sonnenberg was denied, the trial court relying on its earlier ruling. After a sixth juror was agreed upon by the parties, the jury, including Sonnenberg, was sworn in chief and the case tried.
We conclude the trial court erred in denying the peremptory challenge to Sonnenberg as the challenge was exercised prior to the jury being sworn in chief. Accordingly, the judgment and sentence is reversed and the cause remanded for a new trial.
We have considered the remaining points on appeal and find them to be without merit.
Reversed and remanded.
OWEN, C. J., and MAGER, J., concur.
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Citator
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Jones v. State, 332 So. 2d 615 (Fla. 1976)…J., concur. . Article V, Section 3(b)(1), Florida Constitution. . U.S.Const. Amend. IV. . Ellis v. State, 25 Fla. 702, 6 So. 768 (1889); Walden v. State, 319 So. 2d 51 (Fla.App.1975); Shelby v. State, 301 So. 2d 461 (Fla.App.1974); Knee v. State, 294 So. 2d 411 (Fla.App.1974). . Section 924.33 Florida Statutes. . Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct.…
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Grant v. State, 429 So. 2d 758 (Fla. 4th DCA 1983)…nges were exhausted. [*760] Florida courts have consistently held for more than one hundred years that a prospective juror may be challenged at any time before that juror is sworn. See, e.g., Jones v. State, 332 So. 2d 615 (Fla.1976); Knee v. State, 294 So. 2d 411 (Fla. 4th DCA 1974); Walden v. State, 319 So. 2d 51 (Fla. 1st DCA 1975); Shelby v. State, 301 So. 2d 461 (Fla. 1st DCA 1974). However, after a juror or jurors are sworn, the defendant no longer has a right to challenge. In Mathis v. State, 45 Fla.…
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King v. State, 461 So. 2d 1370 (Fla. 4th DCA 1985)…ny time before a juror is sworn. See Matthews v. State, 451 So. 2d 973 (Fla. 4th DCA 1984); Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So. 2d 630 (Fla. 5th DCA 1981); Jones v. State, 332 So. 2d 615 (Fla.1976); Knee v. State, 294 So. 2d 411 (Fla. 4th DCA 1974). The right to backstrike must be reconciled with the supreme court’s statement in Mathis v. State, 45 Fla. 46, 34 So. 287 (1903) that the time for swearing of jurors is in the sound discretion of the trial judge. [*1372] Notwiths…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myers v. State, 43 Fla. 500 (Fla. 1901)
- Ellis v. State, 25 Fla. 702 (Fla. 1889)
- Wolf v. State, 72 Fla. 572 (Fla. 1917)
- Bradham v. State, 41 Fla. 541 (Fla. 1899)
- Kennick v. State, 107 So. 2d 59 (Fla. 1st DCA 1958)