Samuel R. Brown v. State ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SAMUEL RALPHEAL BROWN,
Appellant,
v. Case No. 5D15-3472
STATE OF FLORIDA,
Appellee.
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Opinion filed October 28, 2016
Appeal from the Circuit Court
for Marion County,
Hale R. Stancil, Judge.
James S. Purdy, Public Defender, and Noel
A. Pelella, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General, and
Rebecca Roark Wall, Assistant Attorney
General, Daytona Beach, for Appellee.
PER CURIAM.
As the State properly concedes, Appellant’s convictions for both attempted
second-degree murder and attempted felony murder violated double jeopardy principles.
See Wilkes v. State, 123 So. 3d 632, 634-35 (Fla. 4th DCA 2013) (holding that convictions
of attempted murder and attempted felony murder, arising out of single attempt to cause
death to single victim, violated double jeopardy). On remand, the trial court shall set aside
the conviction for the lesser offense.
We further conclude that Appellant failed to preserve the issue of whether the trial
court erred in failing to make a separate finding as to whether the State provided genuine
race-neutral reasons in support of its exercise of two peremptory challenges. See, e.g.,
Spencer v. State, 196 So. 3d 400, 406 (Fla. 2d DCA 2016) (holding that opponent of
peremptory challenge, which was made pursuant to Melbourne,1 must object to any
deficiency, including pretext, at time of challenge); Ivy v. State, 196 So. 3d 394, 398-99
(Fla. 2d DCA 2016) (holding that defendant failed to preserve issue of whether trial court
erred in failing to make separate finding on issue of pretext after finding exercise of
peremptory challenge to be race-neutral); Hanna v. State, 194 So. 3d 424 (Fla. 3d DCA
2016) (joining the decisions of Spencer and Ivy).
AFFIRMED, in part; REVERSED, in part; REMANDED.
SAWAYA, EVANDER and WALLIS, JJ., concur.
1 Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
2