Welch v. State
| Decision Date | 13 April 2016 |
| Docket Number | No. 2D14–3971.,2D14–3971. |
| Citation | 189 So.3d 296 |
| Parties | Curtis John WELCH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
, Judge.
Curtis Welch appeals his convictions and sentences for stalking and aggravated stalking. Because the trial court erroneously denied two of Mr. Welch's challenges for cause during jury selection, we reverse his judgment and sentences.
Mr. Welch was charged by information with two counts of aggravated stalking. Count I alleged a violation of a temporary injunction for protection against stalking between the dates of December 17, 2013, and December 26, 2013; Count II charged Mr. Welch with violating a final injunction for protection against stalking between December 26, 2013, and February 14, 2014. Each of the charges alleged a sustained course of harassing, obnoxious conduct on the part of Mr. Welch toward the same victim.
The jury found Mr. Welch guilty of the lesser included offense of stalking on Count I and guilty of aggravated stalking, as charged, on Count II. Following the verdict, the trial court imposed concurrent sentences of 365 days in jail on Count I and ten years in prison on Count II. Mr. Welch timely appealed. In his appeal, Mr. Welch raises two issues that we will address in turn: first, whether the trial court abused its discretion by denying his challenges for cause of four jury panelists during voir dire; and second, whether his sentences for these two crimes violated the constitutional prohibition against double jeopardy.1
Mr. Welch identifies four jury panelists who, he contends, should have been stricken from his venire panel for cause.2
We find no error as to the trial court's denial of two of these challenges and affirm those rulings without further comment. With respect to the remaining two prospective jurors, Mr. Strickland and Ms. Wolff, the transcript reveals responses that, while not uncommon for prospective jurors in criminal voir dire proceedings, are nevertheless problematic:
The trial court heard arguments from defense counsel who requested cause challenges for both Mr. Strickland and Ms. Wolff. After hearing responsive arguments from the State, the trial court afforded Mr. Welch one additional peremptory challenge but denied Mr. Welch's request for a second additional peremptory challenge. That is pertinent here because a single improper denial of a cause challenge would not constitute reversible error in this case; rather, reversal would be mandated only if two or more of Mr. Welch's challenges for cause were denied in error. See, e.g., Overton v. State, 801 So.2d 877, 889 (Fla.2001)
(). And as we will explain, both Mr. Strickland and Ms. Wolff should have been stricken for cause, two errors which were not assuaged by the grant of a single additional peremptory challenge.
"The question of the competency of a challenged [prospective] juror is ‘one of mixed law and fact to be determined by the trial judge in his [or her] discretion.’ " Matarranz v. State, 133 So.3d 473, 484 (Fla.2013)
(quoting Singer v. State, 109 So.2d 7, 22 (Fla.1959) ). When presented with a challenge for cause to a prospective juror, a trial court must consider "if there is basis for any reasonable doubt" concerning that prospective juror's ability "to render an impartial verdict based solely on the evidence." Id. (quoting Singer, 109 So.2d at 23 ); see also § 913.03(10), Fla. Stat. (2014) (). A trial court's denial of a challenge for cause must be affirmed unless it amounts to an abuse of discretion. Franqui v. State, 804 So.2d 1185, 1191 (Fla.2001). However, as we explained in Pelham v. Walker, 135 So.3d 1114, 1116 (Fla. 2d DCA 2013) : (citation omitted) (quoting Carratelli v. State, 961 So.2d 312, 318 (Fla.2007) ).
The impartiality required of jurors cannot depend on whether an accused criminal defendant will waive the right to remain silent. See, e.g., Caldwell v. State, 50 So.3d 1234, 1236–38 (Fla. 2d DCA 2011)
(); McKay v. State, 61 So.3d 1178, 1181 (Fla. 3d DCA 2011) (...
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