Matthews v. State

451 So. 2d 973, 1984 Fla. App. LEXIS 13661

Opinion

PER CURIAM.

Reversed and remanded for a new trial on the authority of Grant v. State, 429 So.2d 758 (Fla. 4th DCA 1983).

Prior to the jury being sworn, the appellant attempted to exercise one of his remaining preemptory challenges to the jury panel. The trial court refused to entertain the appellant’s objection at that time and directed that the jury be sworn. After the jury was sworn and the remaining prospective jurors released, the trial court acknowledged on the record the appellant’s attempt to exercise a preemptory challenge prior to the jury being sworn. At the same time the trial judge stated that under his practice jury challenges were not permitted once a juror had been questioned and accepted, even though that juror had not been sworn as a member of a complete jury. The trial court also acknowledged that the appellant had objected to such procedure.

We specifically disapproved of such a jury selection procedure in Grant. Upon review of the record we also are unable to conclude that the error here was harmless. Cf. Jones v. State, 332 So.2d 615 (Fla.1976). In fairness to the trial court, we acknowledge that Grant was decided after the trial of the present case.

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.