State v. Bethel, 72-435
| Decision Date | 07 November 1972 |
| Docket Number | No. 72-435,72-435 |
| Citation | 268 So.2d 557 |
| Parties | The STATE of Florida, Appellant, v. Kelsey BETHEL, Appellee. |
| Court | Florida District Court of Appeals |
Richard E. Gerstein, State's Atty., and Joseph Durant, Asst. State's Atty., for appellant.
Joel Hirschhorn, Miami, for appellee.
Before PEARSON, CHARLES CARROLL and HAVERFIELD, JJ.
This appeal by the state is from an order of the circuit court of Dade County granting a new trial.
On an appeal from an order granting a new trial, consideration by the appellate court is limited and directed to the ground or grounds upon which the new trial was granted. Here, as recited in the order, the trial court granted a new trial on authority of State v. Silva, Fla.1970, 259 So.2d 153, decided February 22, 1972. In so doing the court sustained a challenge to the panel, and as a necessary predicate therefor regarded the defendant's belated challenge to the jury panel by written motion filed after verdict to be timely, by finding the defendant had 'properly preserved' his attack thereon. 1
With reference to the latter, the record shows that after the jurors in this case had been interrogated, and the twelve member jury tentatively selected, counsel for defendant made an oral request for leave to present a challenge to the panel; that such request came shortly before the noon hour; that the court proceeded with the swearing of the jury, and that following the noon recess the court heard argument on an oral motion of the defendant challenging the panel. The matter was not determined at that time because of absence of available proofs in support of the challenge (consisting of testimony which had been given in the Silva case in the same court, wherein the panel had been challenged). Thereupon the trial proceeded to conclusion, with permission of the court to defendant's counsel to raise the matter on motion for new trial.
The defendant was found guilty, and the adjudication of guilt and sentence were entered on December 30, 1971. Thereafter, on January 10, 1972, the defendant filed two motions. One was a motion for new trial which did not contain a challenge to the panel. The other was a motion challenging the panel on the ground that persons between 18 and 21 years of age were excluded therefrom. After hearing but before a ruling was made on those motions, the defendant filed an amendment to his motion for new trial, on February 15, 1972. Therein the defendant challenged the panel from which the jurors in his case had been selected on the additional ground of systematic exclusion of other groups therefrom and because not selected at random from a cross-section of the community.
In Rule 3.300 CrPR, 33 F.S.A., relating to 'challenge to panel' it is said: 'Challenges to the panel shall be made and decided before any individual juror is examined, unless otherwise ordered by the court.' The rule further provides that a challenge to the panel shall be in writing, and shall specify the facts constituting the ground of challenge. The rule then provides that following a trial of the challenge by the court the panel shall be discharged if the challenge is sustained, and if not sustained, 'the individual jurors shall be called.'
In State v. Silva, supra, upon which the court relied here, a challenge to the same panel which supplied the jurors for this case had been held to be properly sustainable. However, with reference to the subject matter covered by Rule 3.300 CrPR, the Supreme Court in the Silva case said:
On this appeal we are confronted with the necessity to determine whether by virtue of Rule 3.300 CrPR the right...
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Arnold v. Wainwright
...276 So.2d 83; Johnson v. State, Fla.Dist.Ct.App.1972, 268 So.2d 544, aff'd Fla.1974, 294 So.2d 69; State v. Bethel, Fla.Dist.Ct.App.1972, 268 So.2d 557.8 The appellants contended at the hearing on remand that a showing of actual prejudice was unnecessary in view of the finding in Peters v. ......
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Hoskins v. State, 84737
...panel is timely if made in writing prior to individual examination of the jury venire in the particular case. See also State v. Bethel, 268 So.2d 557 (Fla. 3d DCA 1972); State v. Silva, 259 So.2d 153 (Fla.1972); Green v. State, 60 Fla. 22, 53 So. 610 (1910). The motion was filed and heard p......
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Bergelson v. State
...3.290; State v. Silva, 259 So.2d 153 (Fla.1972). Accord Johnson v. State, 268 So.2d 544 (Fla. 3d DCA 1972); State v. Bethel, 268 So.2d 557 (Fla. 3d DCA 1972). See also United States v. Dansker, 537 F.2d 40, 63-64 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977......