Jackson v. State, 95-1382

• Court: Court of Appeal of Florida (US)
• Citation: 676 So.2d 1033
• Docket Number: No. 95-1382,95-1382
• Parties: 21 Fla. L. Weekly D1476 Dominic JACKSON, Appellant, v. The STATE of Florida, Appellee.
• Decision Date: 26 June 1996

Page 1033

676 So.2d 1033 21 Fla. L. Weekly D1476 Dominic JACKSON, Appellant,
v.
The STATE of Florida, Appellee. No. 95-1382. District Court of Appeal of Florida,
Third District. June 26, 1996.
Order on Rehearing Aug. 7, 1996.

An Appeal from the Circuit Court for Dade County, Thomas M. Carney, Judge.

Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Consuelo Maingot, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and GODERICH and FLETCHER, JJ.

PER CURIAM.

On the authority of State v. Gray, 654 So.2d 552 (Fla.1995), we vacate the defendant's conviction and sentence for attempted first degree felony murder and, in accordance with Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995), review granted, 668 So.2d 604 (Fla.1996) and Jones v. State, 669 So.2d 1094 (Fla. 3d DCA 1996), and cases cited, reject the state's claim that the conviction may properly be reduced to a lesser offense--in this case, aggravated assault. We again certify to the Supreme Court the question of great public importance stated in Wilson, 660 So.2d at 1069.

The only claim of error in the defendant's numerous other convictions is that the trial judge erred in disallowing an attempted defense peremptory challenge. We disagree because the record supports the conclusions that the African-American defendant's third challenge of a Hispanic prospective juror was racially motivated, see Betancourt v. State, 650 So.2d 1021 (Fla. 3d DCA 1995), review denied, 659 So.2d 272 (Fla.1995), and that the proffered reason for the strike was pretextual. See State v. Slappy, 522 So.2d 18 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).

Affirmed in part, vacated in part, question certified.

ON MOTION FOR REHEARING

In our opinion of June 26, 1996, we vacated outright the defendant's attempted first degree felony murder conviction, holding, on the authority of Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995), that there could be no lesser offense of that now-nonexistent charge. See State v. Gray, 654 So.2d 552 (Fla.1995). Almost immediately thereafter, in State v. Wilson, --- So.2d ---- (Fla. Case no. 86,680, opinion filed, July 3, 1996) [21 FLW S292], the Supreme Court specifically held to the contrary. In accordance with that decision, as to the attempted felony murder count, the cause is remanded for trial on the lesser offense upon which the jury...