Portu v. State, 94-1075
| Decision Date | 08 March 1995 |
| Docket Number | No. 94-1075,94-1075 |
| Citation | 651 So.2d 791 |
| Parties | 20 Fla. L. Weekly D612 Orlando PORTU, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Stephanie G. Kolman and Roberta G. Mandel, Asst. Attys. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
ON MOTION FOR CLARIFICATION GRANTED.
Orlando Portu appeals his conviction and sentence for two counts of motor vehicle theft based on the lower court's denial of defense counsel's peremptory challenge of a juror who eventually served on the convicting jury panel. We reverse.
During jury selection, the defense counsel attempted to use a peremptory challenge to strike prospective juror Angela Wong De Lee. The prosecutor noted for the record that juror Lee was of Hispanic descent, but made no further comment or objection. On the face of it, an Hispanic defendant was challenging an Hispanic juror. There was nothing in the record to suggest a racial reason for Portu not wanting Lee to serve on his jury. Notwithstanding this, the trial court, on this assertion alone, then asked the defense its reasons for striking juror Lee. The defense replied that Lee answered slowly, had given brief answers to questions put to her, and did not seem to have a good grasp of the English language, all of which suggested to the defense that she would not be able to fully understand the proceedings. The lower court judge responded that she had not noticed Lee experiencing any difficulty with the questioning, and did not allow defense counsel to use a peremptory challenge to strike Lee as a juror. Lee subsequently served on the jury that found the defendant guilty as charged to two counts of motor vehicle theft, for which he received two consecutive five-year prison terms.
In State v. Johans, 613 So.2d 1319 (Fla.1993), the Florida supreme court made clear that from that time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. See State v. Neil, 457 So.2d 481 (Fla.1984). If there is no timely objection indicating that a peremptory challenge is being used in a racially discriminatory manner, then there is no basis upon which to interfere with the defendant's right to exercise a valid peremptory strike. Johans, 613 So.2d at 1322. The Johans standard was held to be prospective in application; here, because all parties agree this is a post-Johans case, that is the standard we must apply.
In the instant case, following the presumption in Florida that peremptories will be exercised in a nondiscriminatory manner, the initial burden was on the state to create the inference that defense counsel's peremptory challenge was...
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...would seem no basis for even implying a racial reason for Betancourt's not wanting Garcia to serve on his jury. See Portu v. State, 651 So.2d 791 (Fla. 3d DCA 1995). In this respect, the case is decisively unlike the 650 So.2d at 1023 (footnotes omitted). In addition to the striking similar......
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Rivera v. State, 94-3516
...not constitute either an objection or a threshold showing which would trigger the Neil inquiry envisioned by Johans. In Portu v. State, 651 So.2d 791 (Fla. 3d DCA), review denied, 658 So.2d 992 (Fla. 3d DCA 1995), the third district held that no Neil inquiry was triggered by the state's mer......
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Crevitz v. State, 95-2521
...of two peremptory challenges. Because the issue may recur at the new trial, we point out this court's decisions in Portu v. State, 651 So.2d 791 (Fla. 3d DCA), review denied, 658 So.2d 992 (Fla.1995), and Betancourt v. State, 650 So.2d 1021 (Fla. 3d DCA), review denied, 659 So.2d 272 (Fla.1......
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Pride v. State, 94-1969
...reasons for the peremptory, or observing for the record that the peremptory seems discriminatory is not sufficient. Portu v. State, 651 So.2d 791 (Fla. 3d DCA), rev. denied, 658 So.2d 992 (Fla.1995); Betancourt v. State, 650 So.2d 1021 (Fla. 3d DCA), rev. denied, 659 So.2d 272 (Fla.1995); s......
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Preserving error in jury trials: rules to remember.
...to refer to race or discrimination invalidates objection); Pride v. State, 664 So. 2d 1114 (Fla. 3d D.C.A. 1995); Portu v. State, 651 So. 2d 791 (Fla. 3d D.C.A. 1995) (noting the juror's race on the record was held insufficient), review denied, 658 So. 2d 992 (Fla. 1995). But see Harrison v......