158 So. 3d 626
Fla. Dist. Ct. App.2014Background
- McNeil was convicted of burglary of a dwelling with an assault or battery, aggravated battery, aggravated assault, and grand theft.
- During jury selection, a list of witnesses was read to the venire; Perez did not reveal knowledge of witnesses.
- Trial proceeded and Perez later disclosed some familiarity with Nicko, McNeil's defense witness and Nicko's therapist.
- The trial court denied cause challenge to Perez but allowed the State to use a peremptory strike mid-trial over defense objection.
- The State struck Perez with a mid-trial peremptory challenge; the defense appealed, arguing this violated Florida Rule of Criminal Procedure 3.310.
- The court held that allowing a mid-trial peremptory challenge was impermissible and reversed for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mid-trial peremptory challenge violates Rule 3.310 | McNeil argues mid-trial strike was improper | State contends discretion to strike mid-trial is permissible | Reversed for new trial due to improper mid-trial strike |
Key Cases Cited
- Dery v. State, 68 So.3d 252 (Fla. 2d DCA 2010) (juror misconduct warrants removal and substitution where mid-trial disclosure occurs)
- Bigham v. State, 995 So.2d 207 (Fla.2008) (casual, distant familiarity not material; failure to disclose not always fatal; not reversible where appropriate)
- Nicholas v. State, 47 So.3d 297 (Fla. 2d DCA 2010) (juror concealment can provide good cause for removal mid-trial)
- Washington v. State, 955 So.2d 1165 (Fla. 1st DCA 2007) (reversible error in curbing judge's discretion; mid-trial concerns)
- Orosz v. State, 389 So.2d 1199 (Fla. 1st DCA 1980) (precedent on juror reconfiguration and alternatives)
- Ortiz v. State, 835 So.2d 1250 (Fla. 4th DCA 2003) (harmless error analysis for replaced jurors)
- Dery v. State, 68 So.3d 252 (Fla. 2d DCA 2010) (see above)