592 So. 2d 1127 | Fla. Dist. Ct. App. | 1992
Lead Opinion
We reverse and remand for a new trial based on the authority of Wright v. State, 592 So.2d 1123 (Fla. 3d DCA 1991). We certify the following question, as stated in Jefferson v. State, 584 So.2d 123 (Fla. 4th
WHERE THE TRIAL COURT FINDS THAT A PEREMPTORY CHALLENGE IS BASED UPON RACIAL BIAS, IS THE SOLE REMEDY T,0 DISMISS THE JURY POOL AND START VOIR DIRE OVER WITH A NEW JURY POOL, OR MAY THE TRIAL COURT EXERCISE ITS DISCRETION TO DENY THE PEREMPTORY CHALLENGE IF IT CURES THE DISCRIMINATORY TAINT; FOR EXAMPLE, MUST THE JURY PANEL BE STRICKEN IF THE DISCRIMINATORY CHALLENGE HAS BEEN MADE OUTSIDE ITS PRESENCE?
In light of our decision, we do not need to reach the remaining points raised on appeal by the defendant.
Reversed and remanded for a new trial.
LEVY and GODERICH, JJ., concur.
Concurrence Opinion
(concurring).
In Carter v. State, 550 So.2d 1130 (Fla. 3d DCA), rev. denied, 553 So.2d 1164 (1989), this court gave an impractical “yes” answer to the second part of the certified question relying, purportedly, on State v. Neil, 457 So.2d 481 (Fla.1984). The fourth district followed Carter without an independent analysis. Mazaheritehrani v. Brooks, 573 So.2d 925 (Fla. 4th DCA 1990).
We applied Carter in the heralded case of Lozano v. State, 584 So.2d 19 (Fla. 3d DCA 1991). In Wright v. State, cited in the majority opinion, we again dutifully followed Carter, with an otherwise thoughtful observation by Judge Nesbitt that Carter may be impractical and legally indefensible. It was noted, correctly, that Carter is distinguishable from Neil on the procedural facts. Federal opinions uniformly hold contrary to Carter. See Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); United States v. Forbes, 816 F.2d 1006 (5th Cir.1987); United States v. Robinson, 421 F.Supp. 467 (D.Conn.1976), mandamus granted sub nom., United States v. Newman, 549 F.2d 240 (2d Cir.1977).
Review was granted in Mazaheritehra-ni, which was argued to the Supreme Court of Florida on December 4, 1991. A decision in that case will answer the question certified.
