Braggs v. State
| Decision Date | 10 June 2009 |
| Docket Number | No. 3D06-2372.,3D06-2372. |
| Citation | 13 So.3d 505 |
| Parties | Anthony BRAGGS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
On Motion for Rehearing
Upon consideration of the State of Florida's timely Motion for Rehearing, we grant the motion, withdraw our previously issued opinion dated June 11, 2008 and substitute the following opinion in its place:
Anthony Braggs appeals his convictions and sentence for sexual battery and petit theft. We affirm his convictions and sentence.
Braggs was charged with the sexual battery, armed robbery, carjacking and kidnapping of a victim. Prior to the alleged sexual battery, Braggs and the victim had been drinking together in a bar. Braggs convinced the victim to give him a ride home. He then proceeded to rape her in her car, left her behind, and took her cash, jewelry, cell phone and credit cards. The victim drove to the nearest turnpike toll booth, called the police and when the officer arrived, hysterically reported what had happened to her. The officer's testimony as to what the victim told him was admitted at trial. The jury convicted Braggs of sexual battery as charged, and of the lesser offense of petit theft.
Braggs claims the trial court erred in denying his peremptory strike of juror Gray. During the voir dire of the jury, defense counsel struck juror Gray peremptorily. The prosecutor requested a race-neutral reason for the strike. Defense counsel first responded that juror Gray's brothers were alcoholics. Defense counsel then proffered the race-neutral reason that juror Gray had friends who were police officers. In a lengthy colloquy that followed, the trial judge further inquired of defense counsel as to how the fact that juror Gray's brothers were alcoholics would be related to the case. The trial judge denied the strike. Braggs asserts on appeal that the reasons given by the defense for its peremptory strike of juror Gray, that her two brothers were alcoholics and that she had friends who were police officers, were facially race-neutral.
When this Court initially examined the issue, we agreed that, under Melbourne v. State, 679 So.2d 759 (Fla.1996), where the proffered reason for the peremptory strike is facially race-neutral, the trial court must then determine whether the strike is pretextual before it can be disallowed.1 We found that, based on the transcripts supplied in the original appeal, the trial court was required, but failed, to conduct the third step in that inquiry as to the genuineness of the explanation for the strike of juror Gray. This Court observed that as to other State- and defense-exercised peremptory strikes, the record clearly demonstrated that the trial judge repeatedly made findings both on race-neutrality and on genuineness for each of the individual strikes, and was obviously aware that a three-step analysis was required under Melbourne. The transcripts before us at the time, however, indicated that the trial judge discontinued the Melbourne analysis as to juror Gray after the second step. We agreed with Braggs because—based on the transcripts before us at that time—the reasons for the strike were determined incorrectly by the trial judge not to be race-neutral, the trial judge never addressed the issue of pretext, and improperly disallowed the peremptory challenge, thus seating the juror.
Subsequent to the issuance of our opinion, the State discovered that the transcripts of the voir dire of juror Gray had been incorrectly transcribed, and immediately filed for rehearing based on the corrected transcripts.2 The Public Defender concedes that the corrected version is, indeed, accurate but objects to the motion.3 The corrected transcript shows that the trial court did, in fact, conduct the required Melbourne steps with Juror Gray. We acknowledge the general proscription against considering new claims raised for the first time on rehearing. We consider this circumstance, even though it has been brought for the first time on rehearing, not only because the discovery of the transcription errors is dispositive of the issue on appeal, but also because the justice of the cause persuades us to do so. See Perez v. State, 717 So.2d 605 (Fla. 3d DCA 1998) (); Cauley v. State, 444 So.2d 964 (Fla. 1st DCA 1984) (); accord Walker v. State, 284 So.2d 415 (Fla. 2d DCA 1973); Delmonico v. State, 155 So.2d 368 (Fla.1963) (); see also O'Steen v. State, 92 Fla. 1062, 111 So. 725 (1927). The issue of an accurate transcript is not so much a "new claim" raised for the first time on rehearing, as the trial court's Melbourne analysis concerning the Defendant's attempt to strike juror Gray was and is the only issue on appeal with merit, but rather a correction of a misleading record that is critical to the clarification and disposition of the legal claim originally put to this Court on appeal.
As is plainly shown by the corrected transcripts, the trial court did, in fact, reach the third step of the Melbourne analysis and concluded that the reasons proffered for the strike were race-neutral, but were not genuine. Therefore, the trial court correctly denied the peremptory strike of juror Gray. "A trial court's genuineness inquiry involves consideration of factors which tend to show whether the proffered reason is pre-textual." Scott v State, 920 So.2d 698, 700 (Fla. 3d DCA 2006). In deciding this issue, a trial court's decision on the ultimate issue of pretext will be affirmed on appeal unless clearly erroneous. See Melbourne, 679 So.2d at 764-65. We thus conclude that no error in jury selection occurred below and affirm.4
Affirmed.
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...issue was not raised prior to a decision on the merits, this court will not take it into consideration."); see also Braggs v. State, 13 So. 3d 505, 507 (Fla. 3d DCA 2009) (noting the general proscription against the consideration of claims raised for the first time in a motion for rehearing......
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Lynch v. Sec'y, Dep't of Corr.
...issue was not raised prior to a decision on the merits, this court will not take it into consideration.”); see also Braggs v. State, 13 So.3d 505, 507 (Fla. 3d DCA 2009) (noting the general proscription against the consideration of claims raised for the first time in a motion for rehearing ......
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... ... Considering first the only point which concerns all three convictions, we find no error in the trial judge's determination that the defense's challenge of a prospective juror was pretextual in nature. See Braggs v. State, 13 So.3d 505 (Fla. 3d DCA 2009); Lidiano v. State, 967 So.2d 972 (Fla. 3d DCA 2007), review denied, 983 So.2d 1154 (Fla.2008); Pringle v. State, 792 So.2d 533 (Fla. 3d DCA 2001), review denied, 817 So.2d 849 (Fla.2002) ... The conviction for fleeing or attempting to elude ... ...
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...provides a corrected transcript, the appellate court will properly consider claims based on the corrected transcript. Braggs v. State, 13 So. 3d 505 (Fla. 3d DCA 2009) Fourth District Court of Appeal When issues in defendant’s first appeal are “affirmed without discussion,” the decision con......