Bell v. State
| Decision Date | 12 November 1976 |
| Docket Number | Nos. 75--1577,75--1578,s. 75--1577 |
| Citation | 338 So.2d 1328 |
| Parties | Arnold BELL and Robert Smith, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, Bartow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
Appellants were convicted of robbery and sentenced to life imprisonment. Their only points on appeal worthy of consideration relate to whether they were improperly limited in their exercise of peremptory challenges to the jury.
The appellants were tried together. Prior to trial the court ruled that they were each entitled to only six peremptory challenges rather than the ten peremptory challenges which they had requested. An assertion of the right to ten peremptory challenges was reiterated during voir dire. Each appellant exercised six peremptory challenges, but neither of them sought to exercise a seventh peremptory challenge against any particular juror. The panel was then accepted by appellants' counsel without further objection.
Fla.R.Crim.P. 3.350 clearly provides that each party shall be allowed ten peremptory challenges if the offense charged is punishable by death or imprisonment for life. If the offense charged is a felony not punishable by death or imprisonment for life, each party is entitled to six peremptory challenges. The statute under which the appellants were charged prescribed that robbery was a felony of the first degree punishable by imprisonment for life or for any lesser term of years. 1 Therefore, the appellants were each entitled to ten peremptory challenges.
Where the court incorrectly limits the number of peremptory challenges and the defendant timely attempts to challenge a juror beyond the limits set by the court, the refusal to allow the challenge is reversible error. Meade v. State, 85 So.2d 613 (Fla.1956). On the other hand, where a defendant has not even sought to exercise peremptory challenges up to the limit allowed by the court, he can hardly be heard to complain that he was legally entitled to additional peremptory challenges. Cf. Wilson v. State, 304 So.2d 119 (Fla.1974). The question here is whether it was necessary for each of the appellants to seek to exercise a seventh peremptory challenge in the face of the court's prior ruling that each of them was entitled only to six. We think not. In the words of our Supreme Court, the appellants' attorneys were 'not required to pursue a completely useless course when the judge had announced in advance that it would be fruitless.' Bailey v. State, 224 So.2d...
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Dante v. State, 3D03-3239.
...challenges and despite defendant's assertions that he is entitled to more, refuses to excuse the challenged juror. See Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976) (where trial court ruled prior to trial that each side was entitled to only six peremptory challenges when the defendant wa......
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Sanchez v. GEICO Indem. Co.
...juror could be challenged at that point because all jurors had already been accepted by the state and the defense"); Bell v. State , 338 So. 2d 1328, 1329 (Fla. 2d DCA 1976) (holding that where the trial court erroneously ruled that each party was entitled only to six peremptory challenges,......
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Newsome v. State, 76-1960
...by imprisonment for a term of years not exceeding life imprisonment. Section 810.02(2), Florida Statutes (1975). In Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976), we held that the defendants, who were charged with robbery, a felony punishable by imprisonment for life or any lesser term o......
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Verreautt v. State, 80-961
...after the verdict was returned and judgment pronounced. 1 Compare Newsome v. State, 355 So.2d 483 (Fla. 2d DCA 1978); Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976). The error was such that had it been timely called to the attention of the trial court, it could have been immediately Verre......