FELIPE HERNANDEZ v. STATE OF FLORIDA

264 So. 3d 358

• Court: District Court of Appeal of Florida
• Decided: February 13, 2019
• Docket: 17-2656
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

FELIPE HERNANDEZ, ) ) Appellant, ) ) v. ) Case No. 2D17-2656 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________)

Opinion filed February 13, 2019.

Appeal from the Circuit Court for Lee County; James R. Adams, Acting Circuit Judge.

Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

Ashley Brooke Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Felipe Hernandez appeals from his convictions for two drug-related

offenses, arguing that the trial court improperly denied his strike for cause and his

peremptory strike of a juror. While the trial court committed error in denying Hernandez's peremptory challenge, we affirm because Hernandez did not preserve the

issue for appeal.

Hernandez was charged with possession of cocaine and possession of

drug paraphernalia. During voir dire of the jury, one of the potential jurors, Mr.

Vasciana, expressed a desire to hear Hernandez testify. When further questioned by

the trial court, Vasciana admitted that he could find Hernandez guilty if Hernandez did

not testify, even if the State could not prove its case beyond a reasonable doubt. When

the potential jurors were questioned again on this issue to dispel any confusion,

Vasciana appeared to change his mind and agreed that he would have to find

Hernandez not guilty if the State could not prove its case beyond a reasonable doubt.

Hernandez moved to strike Vasciana for cause because of his apparent

willingness to misapply the burden of proof against Hernandez. The State argued that

Vasciana had been rehabilitated and was merely confused during voir dire. The trial

court agreed with the State and denied the strike for cause. Hernandez then moved to

use a peremptory strike against Vasciana. The State requested a race-neutral

explanation, and Hernandez reiterated his concerns from his previous motion to strike

for cause. However, the trial court denied the peremptory challenge. When asked for

clarification, the trial judge ruled that Hernandez's peremptory strike was not race-

neutral because the reason for the peremptory strike was the same as for the challenge

for cause. Hernandez later tried to revisit the judge's ruling and read case law into the

record. This was the last time the strike was addressed, and the jury was sworn in

without objection.

-2- "[T]he preservation of a challenge to a potential juror requires more than

one objection. When a trial court denies or grants a peremptory challenge, the

objecting party must renew and reserve the objection before the jury is sworn."

Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007) (citing Zack v. State, 911 So. 2d

1190, 1204 (Fla. 2005)). "By not renewing the objection prior to the jury being sworn, it

is presumed that the objecting party abandoned any prior objection he or she may have

had and was satisfied with the selected jury." Zack, 911 So. 2d at 1204 (citing Joiner v.

State, 618 So. 2d 174, 176 (Fla. 1993)).

At jury selection, Hernandez challenged juror Vasciana twice—first for

cause, then via a peremptory strike. The trial judge denied both challenges. Shortly

thereafter, Hernandez asked to revisit the challenge of juror Vasciana and recited case

law into the record favoring Vasciana's dismissal from the jury. Assuming this qualified

as an objection to the judge's rulings on Vasciana, it was the first and last objection

made. Hernandez did not renew the objection before the jury was sworn in, creating the

presumption that he abandoned any objection. See id. Thus, the issue was not

preserved for review.

Had the issue been preserved, however, we would have reversed and

remanded for a new trial. "Florida law provides for two separate types of challenges to

potential jurors with distinctly different underpinnings." Busby v. State, 894 So. 2d 88,

99 (Fla. 2004). Challenges for cause require "narrowly specified, provable and legally

cognizable bas[es] of partiality." Id. (quoting Swain v. Alabama, 380 U.S. 202, 220

(1965)). On the other hand, peremptory challenges may be used "for any reason, so

long as that reason does not serve as a pretext for discrimination." Id. "If the trial court

-3- denies a cause challenge, counsel may . . . remove a venire member through the

utilization of a peremptory challenge." Nelson v. State, 73 So. 3d 77, 85 (Fla. 2011)

(citing Johnson v. State, 921 So. 2d 490, 503-04 (Fla. 2005)). It is improper for a trial

judge to deny a peremptory challenge merely because the judge disagrees with the

reason offered for dismissing a prospective juror. See Roberts v. State, 937 So. 2d

781, 785 (Fla. 2d DCA 2006) ("[T]he essence of the peremptory challenge is that it may

be used for any reason . . . ." (citing Busby, 894 So. 2d at 99)). Thus, "[a] trial court's

failure to permit a party to exercise its peremptory challenges in accordance with the

law is reversible error." Id. (citing Van Sickle v. Zimmer, 807 So. 2d 182, 184 (Fla. 2d

DCA 2002)).

In this case, Hernandez challenged juror Vasciana for cause but the trial

court denied the challenge. When Hernandez then tried to use a peremptory challenge

against Vasciana, the trial judge again denied the challenge, stating: "That issue was

pretty much resolved at the time I dealt with the for cause challenge. I don't really view

it as a different standard in terms of review of the reason why he was not stricken for

cause." This was error. The trial judge may have disagreed with the basis of

Hernandez's challenge for cause, but that in no way precluded Hernandez from using a

peremptory challenge against Vasciana. Hernandez was only required to articulate his

objection to Vasciana to show he was not motivated by racial discrimination. See

Collier v. State, 134 So. 3d 1042, 1043 (Fla. 1st DCA 2013) (citing Melbourne v. State,

679 So. 2d 759, 764 (Fla. 1996)). Contrary to the judge's finding, a peremptory

challenge "can be used when defense counsel cannot surmount the standard for a

-4- cause challenge." Hayes v. State, 94 So. 3d 452, 460 (Fla. 2012) (quoting Busby, 894

So. 2d at 100).

Nevertheless, and unfortunately for Hernandez, this issue was not

preserved for appeal. We are compelled to affirm without prejudice to Hernandez's right

to file a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

LaROSE, C.J., and NORTHCUTT, J., Concur.

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