Edge v. State, 82-481

• Decision Date: 13 September 1984
• Docket Number: No. 82-481,82-481
• Citation: 455 So.2d 626
• Parties: Roosevelt EDGE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 626

455 So.2d 626

Roosevelt EDGE, Appellant, v. STATE of Florida, Appellee.

No. 82-481.

District Court of Appeal of Florida,

Fifth District.

Sept. 13, 1984.

Appeal from the Circuit Court for Orange County, Lon S. Cornelius, jr., judge.

John A. Baldwin, Fern Park, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

AFFIRMED, EN BANC. ¹ We hereby reaffirm the holding of this court in Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So.2d 630 (Fla. 5th DCA 1981). See also Jones v. State, 332 So.2d 615 (Fla.1976).

COBB, C.J., and DAUKSCH, ORFINGER, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

COWART, J., concurs specially with opinion.

COWART, Judge, concurring specially:

Before voir dire began, the trial judge informed counsel that once the defense tendered six jurors to be the jury in this criminal case and the State accepted them, no further peremptory challenges could be exercised even though the jurors had not yet been sworn. After voir dire examination, defense counsel tendered a jury of six and the State accepted them. Thereafter defense counsel sought to exercise a peremptory challenge to excuse one of the jurors and the trial judge denied that request. This appeal presented the questions of whether under Florida Rule of Criminal Procedure 3.310 the trial court abused its discretion in regulating the manner in which peremptory challenges were to be used, and if so, whether it was reversible error. Associate Judge Robert Miller, of the original appellate panel, wrote a proposed opinion affirming and stating that there was no abuse of discretion because the trial court put the parties on prior notice as to the manner in which counsel were to use peremptory challenges and that manner permitted each party a reasonable method to exercise peremptory challenges after given an opportunity to view the prospective panel as a whole. Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So.2d 630 (Fla. 5th DCA 1981), was distinguished on the basis that the jury selection procedure imposed by the trial judge in that civil case was disapproved because it required counsel to finally accept or to challenge each juror individually and one at a time and that procedure denied the right to peremptorily challenge any one of the jurors after counsel was first able to view the prospective jury as a whole. Florida Rock declined to apply the harmless error statutes because of the particular facts in that case. Judge Cowart concurred with the proposed panel opinion and affirmance but also took the position that even if there was error, under Jones v. State, 332 So.2d 615 (Fla.1976), the harmless error statute applied because the record in this case failed to reveal any error resulting in prejudice to the defendant. Judge Upchurch dissented on the grounds that reversible error occurred, that under Jones v. State such error was harmless only when the evidence of guilt was overwhelming and that the evidence of guilt in this case was not overwhelming. En banc proceedings were instituted on the basis that the proposed panel majority opinion was in conflict with Florida Rock and that Florida Rock required a reversal in this case. Five of the six active judges actually participating and voting en banc were of the opinion that the trial court erred but three of...