FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
for Review of the Decision of the District Court of Appeal -
Certified Direct Conflict of Decisions Fourth District - Case
No. 4D14-907 (Palm Beach County)
Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, Fifteenth Judicial Circuit, West Palm Beach,
Florida, for Petitioner
Jo Bondi, Attorney General, Tallahassee, Florida; and Celia
A. Terenzio, Bureau Chief, and Jeanine Germanowicz, Assistant
Attorney General, West Palm Beach, Florida, for Respondent
for review McCray v. State, 199 So.3d 1006 (Fla. 4th
DCA 2016), in which the Fourth District Court of Appeal
certified conflict with the Third District Court of
Appeal's decision in McIntosh v. State, 743
So.2d 155 (Fla. 3d DCA 1999), "to the extent the results
of [McCray] . . . may be perceived to conflict with
McIntosh." McCray, 199 So.3d at 1010.
We accepted jurisdiction based on this certified conflict.
See art. V, § 3(b)(4), Fla. Const.
issue in this case involves the exercise of peremptory
challenges in jury selection and whether a party has the
right to "unstrike, " or withdraw a previously
exercised peremptory challenge, when it has exhausted its
peremptory challenges and the opposing party subsequently
accepts the jury panel.
agree with the Fourth District that the trial court did not
abuse its discretion in denying Petitioner Moses McCray's
request to "unstrike" a juror under the
circumstances presented. However, we disapprove the Fourth
District's decision to the extent that it endorses a
blanket rule prohibiting the withdrawal of a peremptory
challenge after a party has exhausted its peremptory
challenges. As we explain, McIntosh demonstrates
that the withdrawal of a peremptory challenge when a party
has already exhausted its peremptory challenges could be
warranted by unusual or extenuating circumstances. We
emphasize, however, that even though a party may exercise an
unused peremptory challenge at any time before the jury is
sworn and a trial court has discretion to grant additional
peremptory challenges, the party does not have a
"right" to "unstrike" a juror.
Fourth District set forth the discussions that occurred
during voir dire between the trial court, the parties, and
Juror 3.9-the juror McCray sought to remove from the jury
panel after exercising his last remaining peremptory
challenge on Juror 2.5:
JUROR 3.9: My name . . . I live in Lake Worth. My occupation,
I'm working for school district. I'm a driver.
I'm married. My wife is (indiscernible). I do have three
children. They are high school. I have never been served jury
COURT: Is that a no?
JUROR 3.9: No. I have never been in crime victim of any
crime. I don't have any friends in law enforcement. And I
will follow the law explained. And yes, I will give fair
trial to both sides. And no reason I cannot serve.
STATE: [Juror 3.9], how are you?
JUROR 3.9: Fine.
STATE: Good. We have several folks here that have nice
accents and I can kind of tell from some individuals having
served on prior jury service or their answers that there was
no issue with language. But I wanted to check with you to see
you have a nice accent but I want to make sure are you
understanding everything that we're saying?
JUROR 3.9: Yes.
STATE: Excellent. No language problem if you were to serve on
JUROR 3.9: No.
The defense did not ask Juror 3.9 any direct questions.
During the parties' initial round of cause challenges,
the defendant did not challenge Juror 3.9 for cause.
During the parties' peremptory strikes, the defendant
used his last peremptory strike on Juror 2.5. That strike put
Juror 3.9 "in the box" as the sixth juror. The
state, which had two peremptory strikes remaining, accepted
the panel, including Juror 3.9.
The defendant then stated he wanted to challenge Juror 3.9
for cause because he had "a serious question about
[Juror 3.9's] ...