Samuel R. Brown v. State

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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. ________________________________/ 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

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