PEREZ V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2004 ** GILBERTO PEREZ, ** Appellant, ** CASE NO. ** vs. CASE NO. 3D03-2818 ** THE STATE OF FLORIDA, Appellee. TRIBUNAL NO. ** ** LOWER TRIBUNAL NO. 03-14481 Opinion filed December 22, 2004. An Appeal from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge. Bennett H. Brummer, Public Defender, and McKenna, Assistant Public Defender, for appellant. Shannon P. Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee. Before GODERICH, SHEVIN, and SHEPHERD, JJ. PER CURIAM. The defendant, Gilberto Perez, appeals from his conviction and sentence for aggravated assault with a deadly weapon. We reverse and remand for a new trial. The defendant was charged with aggravated assault with a deadly weapon and aggravated stalking. During voir dire, the State sought to peremptorily challenge prospective juror Stephen Gonzalez. The defense objected to the State s request noting that the defendant was a Latin male and that prospective juror Gonzalez was also a Latin male and, as such, a member of a protected class. The defense reason for the challenge. then requested a race-neutral In response, the State answered, Mr. Gonzalez, during all the voir dire said he could be a really good juror. I would like more than him Ms. Libby. striking him so I could get Ms. Libby on the panel. reason. The trial allowed the strike. court did not inquire any I am That is my further and Thereafter, the trial court denied the defense s request to peremptorily challenge prospective juror Libby. The jury returned a verdict finding the defendant guilty of aggravated assault aggravated stalking. with deadly weapon and not guilty of The defendant was adjudicated guilty and sentenced to 120 days in county jail. 2 This appeal followed. The erred defendant by contends allowing the that State prospective juror Gonzalez. the trial court reversibly to peremptorily challenge We agree. In Joiner v. State, 618 So. 2d 174, 175 (Fla. 1993), the State sought to peremptorily prospective juror. challenge an African-American The reason given by the State was that it would like to constitute the jury with some people down the line I prefer more, and including another juror. The trial court ruled that the reason given satisfied the Neil1 inquiry and that it was race-neutral. The Florida Supreme Court, however, disagreed with the trial court stating that [t]here is no doubt that the State gave an inadequate reason for exercising a peremptory challenge against [the African-American prospective juror]. In the instant case, the State sought to challenge prospective juror Gonzalez so that it could reach prospective juror Libby. The reason provided by the State was not directed at Gonzalez. In fact, the State acknowledged that Gonzalez said that he could be a really good juror. Further, the trial court failed to inquire and the State failed to explain why it sought 1 to strike prospective juror Gonzalez State v. Neil, 457 So. 2d 481 (Fla. 1984). 3 instead of backstriking another prospective the State is an peremptory challenge. Henry v. State, 724 in order to reach Pursuant to Joiner, the reason given prospective juror Libby. by juror inadequate reason for exercising a Joiner, 618 So. 2d at 174; see also So. 2d 657, 658 (Fla. 2d DCA 1999). Therefore, we reverse the defendant s conviction and sentence and remand for a new trial. Based on our disposition of the above issue, we do not address whether the trial court also reversibly erred by prohibiting the defense from exercising a peremptory challenge on prospective juror Libby. Reversed and remanded. 4
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