FELIPE HERNANDEZ v. STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FELIPE HERNANDEZ, )
)
Appellant, )
)
v. ) Case No. 2D17-2656
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed February 13, 2019.
Appeal from the Circuit Court for Lee
County; James R. Adams, Acting Circuit
Judge.
Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
Ashley Brooke Moody, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.
KHOUZAM, Judge.
Felipe Hernandez appeals from his convictions for two drug-related
offenses, arguing that the trial court improperly denied his strike for cause and his
peremptory strike of a juror. While the trial court committed error in denying
Hernandez's peremptory challenge, we affirm because Hernandez did not preserve the
issue for appeal.
Hernandez was charged with possession of cocaine and possession of
drug paraphernalia. During voir dire of the jury, one of the potential jurors, Mr.
Vasciana, expressed a desire to hear Hernandez testify. When further questioned by
the trial court, Vasciana admitted that he could find Hernandez guilty if Hernandez did
not testify, even if the State could not prove its case beyond a reasonable doubt. When
the potential jurors were questioned again on this issue to dispel any confusion,
Vasciana appeared to change his mind and agreed that he would have to find
Hernandez not guilty if the State could not prove its case beyond a reasonable doubt.
Hernandez moved to strike Vasciana for cause because of his apparent
willingness to misapply the burden of proof against Hernandez. The State argued that
Vasciana had been rehabilitated and was merely confused during voir dire. The trial
court agreed with the State and denied the strike for cause. Hernandez then moved to
use a peremptory strike against Vasciana. The State requested a race-neutral
explanation, and Hernandez reiterated his concerns from his previous motion to strike
for cause. However, the trial court denied the peremptory challenge. When asked for
clarification, the trial judge ruled that Hernandez's peremptory strike was not race-
neutral because the reason for the peremptory strike was the same as for the challenge
for cause. Hernandez later tried to revisit the judge's ruling and read case law into the
record. This was the last time the strike was addressed, and the jury was sworn in
without objection.
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"[T]he preservation of a challenge to a potential juror requires more than
one objection. When a trial court denies or grants a peremptory challenge, the
objecting party must renew and reserve the objection before the jury is sworn."
Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007) (citing Zack v. State, 911 So. 2d
1190, 1204 (Fla. 2005)). "By not renewing the objection prior to the jury being sworn, it
is presumed that the objecting party abandoned any prior objection he or she may have
had and was satisfied with the selected jury." Zack, 911 So. 2d at 1204 (citing Joiner v.
State, 618 So. 2d 174, 176 (Fla. 1993)).
At jury selection, Hernandez challenged juror Vasciana twice—first for
cause, then via a peremptory strike. The trial judge denied both challenges. Shortly
thereafter, Hernandez asked to revisit the challenge of juror Vasciana and recited case
law into the record favoring Vasciana's dismissal from the jury. Assuming this qualified
as an objection to the judge's rulings on Vasciana, it was the first and last objection
made. Hernandez did not renew the objection before the jury was sworn in, creating the
presumption that he abandoned any objection. See id. Thus, the issue was not
preserved for review.
Had the issue been preserved, however, we would have reversed and
remanded for a new trial. "Florida law provides for two separate types of challenges to
potential jurors with distinctly different underpinnings." Busby v. State, 894 So. 2d 88,
99 (Fla. 2004). Challenges for cause require "narrowly specified, provable and legally
cognizable bas[es] of partiality." Id. (quoting Swain v. Alabama, 380 U.S. 202, 220
(1965)). On the other hand, peremptory challenges may be used "for any reason, so
long as that reason does not serve as a pretext for discrimination." Id. "If the trial court
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denies a cause challenge, counsel may . . . remove a venire member through the
utilization of a peremptory challenge." Nelson v. State, 73 So. 3d 77, 85 (Fla. 2011)
(citing Johnson v. State, 921 So. 2d 490, 503-04 (Fla. 2005)). It is improper for a trial
judge to deny a peremptory challenge merely because the judge disagrees with the
reason offered for dismissing a prospective juror. See Roberts v. State, 937 So. 2d
781, 785 (Fla. 2d DCA 2006) ("[T]he essence of the peremptory challenge is that it may
be used for any reason . . . ." (citing Busby, 894 So. 2d at 99)). Thus, "[a] trial court's
failure to permit a party to exercise its peremptory challenges in accordance with the
law is reversible error." Id. (citing Van Sickle v. Zimmer, 807 So. 2d 182, 184 (Fla. 2d
DCA 2002)).
In this case, Hernandez challenged juror Vasciana for cause but the trial
court denied the challenge. When Hernandez then tried to use a peremptory challenge
against Vasciana, the trial judge again denied the challenge, stating: "That issue was
pretty much resolved at the time I dealt with the for cause challenge. I don't really view
it as a different standard in terms of review of the reason why he was not stricken for
cause." This was error. The trial judge may have disagreed with the basis of
Hernandez's challenge for cause, but that in no way precluded Hernandez from using a
peremptory challenge against Vasciana. Hernandez was only required to articulate his
objection to Vasciana to show he was not motivated by racial discrimination. See
Collier v. State, 134 So. 3d 1042, 1043 (Fla. 1st DCA 2013) (citing Melbourne v. State,
679 So. 2d 759, 764 (Fla. 1996)). Contrary to the judge's finding, a peremptory
challenge "can be used when defense counsel cannot surmount the standard for a
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cause challenge." Hayes v. State, 94 So. 3d 452, 460 (Fla. 2012) (quoting Busby, 894
So. 2d at 100).
Nevertheless, and unfortunately for Hernandez, this issue was not
preserved for appeal. We are compelled to affirm without prejudice to Hernandez's right
to file a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850.
Affirmed.
LaROSE, C.J., and NORTHCUTT, J., Concur.
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