final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court, Jackson County. Shonna Young
Thomas, Public Defender, Jennifer P. LaVia, Special Public
Defender, for Appellant.
Jo Bondi, Attorney General, Michael McDermott, Assistant
Attorney General, for Appellee.
ON MOTION FOR REHEARING
the State's motion for rehearing, but we pose the
following certified question of great public importance:
Has a defendant who accepts a jury, but renewed a
previously-raised objection to a state peremptory challenge
after the challenged juror has been excused but before the
jury is sworn, waived that objection?
Art. V, § 3, Fla. Const. We view this important question
as unanswered, or at least left open, under the decision in
Joiner v. State, 618 So.2d 174, 176 (Fla. 1993). In
that case, the defendant "affirmatively accepted the
jury immediately prior to its being sworn without reservation
of his earlier-made objection." Id. The Court
said that "counsel's action in accepting the jury
led to a reasonable assumption that he had abandoned, for
whatever reason, his earlier objection." Id. It
noted, however, that:
Had [defendant] renewed his objection or accepted the jury
subject to his earlier [peremptory] objection, we would rule
otherwise. Such action would have apprised the trial judge
that [defendant] still believed reversible error had
occurred. At that point the trial judge could have
exercised discretion to either recall the challenged juror
for service on the panel, strike the entire panel and begin
anew, or stand by the earlier ruling.
Id. (emphasis added). As the italicized language
reflects, the Court envisioned three options at the time of
the renewed objection: recall the challenged juror, strike
the panel and start over, or stand pat.
once a jury is accepted and a challenged juror is dismissed
and unavailable, as in this case, only two options remain:
strike the panel or stand by the prior ruling. That only two
of these three options remain after jurors are
dismissed, however, does not strike us as a basis to
alter the long-standing principle that a defendant has a
right to lodge an objection up until the jury is
sworn, as Ivey did in this case. See, e.g.,
Jackson v. State, 464 So.2d 1181, 1183 (Fla. 1985);
O'Connor v. State, 9 Fla. 215, 229 (1860);
Shelby v. State, 301 So.2d 461, 462 (Fla. 1st DCA
1974). Drawing the line at this point makes the most sense
because it is the final step before the jury selection
process ends and trial begins. As such, we pass upon the
certified question and answer it in the negative.
light of the three-option language in Joiner,
however, a plausible argument is that accepting a jury and
allowing a challenged juror to be dismissed is sufficient
grounds to conclude that the peremptory objection has been
abandoned entirely, which would move the existing timeline
back and preclude a renewed objection after juror dismissal
but before the jury is sworn. To allow our supreme court to
consider the matter, we certified the question above for its
consideration. Barritt v. State, 517 So.2d 65, 68
(Fla. 1st DCA 1987) (certifying question due to perceived
need to clarify supreme court caselaw), decision
quashed, 531 So.2d 338 (Fla. 1988) (accepting
jurisdiction and quashing decision).
J., and Brown, John, ...