Shelby v. State, 87-1767

Decision Date27 January 1989
Docket NumberNo. 87-1767,87-1767
Parties14 Fla. L. Weekly 289 James D. SHELBY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James S. Purdy, Sarasota, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

CAMPBELL, Chief Judge.

Appellant, James D. Shelby, raises five points in this appeal from his convictions and sentences for burglary of a dwelling, sexual battery while wearing a mask and while using or threatening to use a deadly weapon, false imprisonment and petit theft.

We find that one of those points, the trial court's refusal to allow appellant to exercise his final peremptory challenge, has sufficient merit to require us to reverse appellant's convictions and sentences and remand for a new trial. Our disposition of that issue makes all but two of appellant's other arguments moot, which we will address.

In regard to the trial court's denial of appellant's right to exercise his last peremptory challenge, the record shows that both appellant and the state had completed their voir dire examinations of the prospective jurors and both parties had indicated acceptance of the panel on the afternoon before the trial was scheduled to begin. The jury panel was not sworn at that time, but was directed to return for trial the next morning and to be sworn at that time. During voir dire, one prospective juror had indicated he had a daughter who had been molested as a child. While the juror expressed concern over his feelings about that incident, he also expressed his belief that he could be fair to appellant. The next day, prior to swearing the jury and prior to the commencement of trial, appellant attempted to exercise his one remaining peremptory challenge to excuse that juror. The trial judge denied appellant's request to exercise his last peremptory challenge.

The case law of this state and the clear language of Florida Rule of Criminal Procedure 3.310 are explicit in their teachings that the denial of appellant's right to exercise his peremptory challenge before the jury is sworn is error and requires us to reverse appellant's convictions and sentences and remand for a new trial. Gilliam v. State, 514 So.2d 1098 (Fla.1987); Kidd v. State, 486 So.2d 41 (Fla. 2d DCA 1986); Walden v. State, 319 So.2d 51 (Fla. 1st DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976).

We next address appellant's assertion that the court should have entered a judgment of acquittal on the charge of sexual battery while using or threatening to use a deadly weapon. The victim in this case was attacked by an intruder in her apartment at approximately 5:00 a.m. The intruder grabbed the victim while she was in bed, moved the bedcovers away and started moving his hands on her body. He grabbed her arms and she struggled. When she started to scream, he put his hand over her mouth. She believed he was wearing rubber gloves. The intruder stated that he did not want to hurt her. He told her he had a gun in his pocket and she had better cooperate. She did not see a gun, feel a gun, nor did he display a gun. The victim could not identify the intruder from the sound of his voice, as he sounded as if he was disguising his voice. He handcuffed her hands behind her back and committed a sexual battery upon her. The intruder then threw the covers on top of her and did something around the dresser. He removed the handcuffs and advised her that if she told anyone of the incident he would return. After the incident, the victim found her purse on the floor. A couple of dollars and her house keys were gone.

In a later search of appellant's apartment, a number of items were recovered that linked appellant to the scene of the crime. However, neither the victim's house key nor a weapon were ever found.

The amended information charges that appellant, in the process of committing the sexual battery, "threatened to use a deadly weapon, to wit: A Gun." Section 794.011(3), Florida Statutes (1985), makes it a crime to commit a sexual battery while the perpetrator "uses or threatens to use a deadly weapon." The charge against appellant was specifically limited to "threatened to use a deadly weapon." He was not charged with using a deadly weapon. It is also significant that section 794.011(3) does not require that a threat to use a deadly weapon be accompanied by the additional element of the display of that weapon. There appear to be no cases in Florida interpreting the necessary elements of proof for "threatening to use a deadly weapon." (Here, a gun, by definition of law, is a deadly weapon. M.R.R. v. State, 411 So.2d 983 (Fla. 3d DCA 1982).)

More particularly, no cases have addressed the issue of whether a threat to use a deadly weapon can be accomplished by words alone when the weapon is unseen and never discovered. We conclude, however, that such a threat with an unseen and undiscovered deadly weapon does satisfy the...

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14 cases
  • Mitchell v. State, 95-02169
    • United States
    • Florida District Court of Appeals
    • July 11, 1997
    ...a determination that he used a "deadly weapon" but also would have supported a conviction for using a "firearm." In Shelby v. State, 541 So.2d 1219 (Fla. 2d DCA 1989), this court reviewed a sexual battery case in which the defendant "threatened to use a deadly weapon." The defendant claimed......
  • Smith v. State, 93-2051
    • United States
    • Florida District Court of Appeals
    • November 14, 1994
    ...471 (Fla. 1st DCA 1984); Gibbs v. State, 623 So.2d 551 (Fla. 4th DCA 1993), rev. denied, 630 So.2d 1099 (Fla.1993). In Shelby v. State, 541 So.2d 1219 (Fla. 2d DCA 1989), the court found that in those cases where the statute requires the threat of the use of a deadly weapon, the evidence ma......
  • Dowling v. State, 97-2998.
    • United States
    • Florida District Court of Appeals
    • November 12, 1998
    ...or political function. In support of its argument that the trial court's instruction was erroneous, appellant relies on Shelby v. State, 541 So.2d 1219 (Fla. 2d DCA 1989), and Sigler v. State, 590 So.2d 18 (Fla. 4th DCA 1991). Those cases, decided prior to amendment of the false imprisonmen......
  • Chaeld v. State
    • United States
    • Florida District Court of Appeals
    • May 18, 1992
    ...four kidnapping motives must be alleged and proved at trial in order to convict a defendant of the crime. But see Shelby v. State, 541 So.2d 1219, 1221 (Fla. 2d DCA 1989) (holding that it is error to omit from the standard false imprisonment instruction the "acted for any purpose other than......
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