          Supreme Court of Florida
                                   ____________

                                    No. SC19-96
                                   ____________

                              STATE OF FLORIDA,
                                  Petitioner,

                                          vs.

                              GEOVANI JOHNSON,
                                 Respondent.

                                    May 21, 2020

LAWSON, J.

      In the decision on review, Johnson v. State, 268 So. 3d 729 (Fla 4th DCA

2018), the Fourth District Court of Appeal certified direct conflict with the

decisions of several other district courts of appeal in Ivy v. State, 196 So. 3d 394

(Fla. 2d DCA 2016), Hanna v. State, 194 So. 3d 424 (Fla. 3d DCA 2016), and

Brown v. State, 204 So. 3d 546 (Fla. 5th DCA 2016). The conflict concerns the

procedure for preserving a challenge to the trial court’s determination that the

facially race-neutral reason proffered by the proponent of a peremptory strike was

genuine under step 3 of Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996)

(setting forth a three-step inquiry to review claims of discriminatory use of
peremptory strikes: (1) objection; (2) race-neutral explanation; and (3)

determination of genuineness). We have jurisdiction. See art. V, § 3(b)(4), Fla.

Const. For the reasons below, we hold that the party opposing a peremptory strike

must make a specific objection to the proponent’s proffered race-neutral reason for

the strike, if contested, to preserve the claim that the trial court erred in concluding

that the proffered reason was genuine. Accordingly, we quash the Fourth District’s

decision to the contrary in Johnson and approve the certified conflict cases to the

extent they are consistent with this opinion.

                                  BACKGROUND

      “Under Florida law, a party’s use of peremptory challenges is limited only

by the rule that the challenges may not be used to exclude members of a

‘distinctive group,’ ” such as race. San Martin v. State, 705 So. 2d 1337, 1343

(Fla. 1997). In Melbourne, we recognized that “peremptories are presumed to be

exercised in a nondiscriminatory manner” and articulated the following three-step

test for trial courts to apply in determining whether a proposed peremptory

challenge is race-neutral:

             A party objecting to the other side’s use of a peremptory
      challenge on racial grounds must: a) make a timely objection on that
      basis, b) show that the venireperson is a member of a distinct racial
      group, and c) request that the court ask the striking party its reason for
      the strike. If these initial requirements are met (step 1), the court must
      ask the proponent of the strike to explain the reason for the strike.




                                          -2-
             At this point, the burden of production shifts to the proponent
      of the strike to come forward with a race-neutral explanation (step 2).
      If the explanation is facially race-neutral and the court believes that,
      given all the circumstances surrounding the strike, the explanation is
      not a pretext, the strike will be sustained (step 3). The court’s focus in
      step 3 is not on the reasonableness of the explanation but rather its
      genuineness. Throughout this process, the burden of persuasion
      never leaves the opponent of the strike to prove purposeful racial
      discrimination.

Melbourne, 679 So. 2d at 764 (footnotes omitted) (emphasis added).

      In the voir dire proceedings in Johnson’s case, the State proposed a

peremptory strike as to a prospective African-American juror. Johnson, 268 So. 3d

at 731. Johnson requested a race-neutral reason for the strike, and the State

proffered that the prospective juror had previously indicated that he would prefer

“CSI evidence,” referencing the type of evidence commonly featured on a

television show titled Crime Scene Investigation. Id. at 731 & n.2. Seemingly

cutting off the State mid-explanation, the trial court found the proffered reason to

be race-neutral and, without objection or argument from Johnson as to why the

State’s proffered reason was not genuine, upheld the State’s peremptory strike. Id.

at 732. Johnson later renewed his objection to the State’s peremptory strike but

never argued that the State’s proffered explanation lacked record support nor

advanced any argument as to why that explanation was not genuine. Id.

      On appeal to the Fourth District, Johnson claimed that the trial court did not

properly conduct step 3 of the Melbourne inquiry because the record did not show


                                         -3-
that “the trial court . . . reviewe[d], analyze[d], or conducte[d] any ‘judicial

assessment’ of the reasons given by the State for striking [the prospective juror at

issue].” Johnson, 268 So. 3d at 733 (quoting Hayes v. State, 94 So. 3d 452, 462

(Fla. 2012)). In addition to disputing the merits of Johnson’s claim, the State

argued that Johnson failed to properly preserve the issue. Id. In rejecting the

State’s arguments, the Fourth District followed the plurality opinion in Spencer v.

State, 238 So. 3d 708 (Fla. 2018), which relied on language from Hayes, 94 So. 3d

452, indicating that—even in the absence of an objection or argument by the

opponent of the strike that the facially race-neutral reason given for the strike is

pretextual (i.e., not genuine)—the trial court is subject to reversal for failing to

make a record sufficient to demonstrate on appeal that it independently questioned

the genuineness of the proffered reason for the strike before making its

genuineness finding under step 3 of Melbourne. Johnson, 268 So. 3d at 736-37.

Applying these decisions, the Fourth District determined that Johnson’s request for

a race-neutral reason during step 1 of Melbourne was all that was necessary to

preserve an objection to the genuineness of the facially race-neutral reason

proffered during step 2, see id., and reversed and remanded for a new trial based on

its conclusion that the trial court had failed to create a record sufficient to

demonstrate compliance with the duty imposed by step 3 of Melbourne to

determine the genuineness of the proffered race-neutral reason. Id. at 742-43. In


                                          -4-
so holding, the Fourth District certified direct conflict with Ivy, Hanna, and Brown.

Johnson, 268 So. 3d at 743.

                                     ANALYSIS

      Generally, except in cases of fundamental error, we require parties to

“preserve issues for appellate review by raising them first in the trial court.”

Harrell v. State, 894 So. 2d 935, 939 (Fla. 2005); see also Morrison v. State, 818

So. 2d 432, 446 (Fla. 2002) (concluding that a party must have made “the same

argument to the trial court that it raises on appeal” to preserve the issue for

appellate review); Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (holding that

defense counsel did not preserve an issue for appellate review because he “did not

present [the same] argument to the trial court”). “[P]roper preservation requires

the following three steps from a party: (1) a timely, contemporaneous objection;

(2) a legal ground for the objection and; (3) ‘[i]n order for an argument to be

cognizable on appeal, it must be the specific contention asserted as legal ground

for the objection, exception, or motion below.’ ” Fleitas v. State, 3 So. 3d 351, 355

(Fla. 3d DCA 2008) (quoting Harrell, 894 So. 2d at 940).

      The same is true in the context of preservation of Melbourne claims. It is

the objecting party’s obligation to place the trial court on notice of the basis for the

challenge and create a record supporting that objection. Dorsey v. State, 868 So.

2d 1192, 1197 (Fla. 2003); Rimmer v. State, 825 So. 2d 304, 320-21 (Fla. 2002).


                                          -5-
Indeed, in Floyd v. State, 569 So. 2d 1225, 1229 (Fla. 1990) (emphasis added), we

held that “[i]f the explanation is challenged by opposing counsel,” the strike

opponent “must place the court on notice” to preserve a claim of racial

discrimination for appellate review. We stated:

              It is the state’s obligation [as the proponent of the strike] to
      advance a facially race-neutral reason that is supported in the record.
      If the explanation is challenged by opposing counsel, the trial court
      must review the record to establish record support for the reason
      advanced. However, when the state asserts a fact as existing in the
      record, the trial court cannot be faulted for assuming it is so when
      defense counsel is silent and the assertion remains unchallenged.
      Once the state has proffered a facially race-neutral reason, a
      defendant must place the court on notice that he or she contests the
      factual existence of the reason.

Id. (emphasis added).

      Although Floyd predates Melbourne’s holding that, at step 3, the trial court

should focus on the genuineness rather than the reasonableness of the proponent’s

proffered race-neutral reason for the strike, Melbourne, 679 So. 2d at 764, we have

never receded from Floyd’s preservation requirement. To the contrary, this Court

has continually cited Floyd, post-Melbourne, to explain that the opponent of a

peremptory strike must challenge the proffered race-neutral reason and explain the

basis for the challenge to preserve a challenge to the trial court’s step 3 ruling for

appellate review. See, e.g., Hoskins v. State, 965 So. 2d 1, 9 (Fla. 2007); Dorsey,

868 So. 2d at 1197; Rimmer, 825 So. 2d at 320-21; see also Truehill v. State, 211

So. 3d 930, 943 (Fla. 2017).

                                          -6-
      And we have done so for good reason. Not only is Floyd’s preservation

requirement consistent with the basic premise behind preservation of Melbourne

claims, namely that it is the objecting party’s obligation to place the trial court on

notice of the basis for his or her challenge and create a record supporting that

objection, see Dorsey, 868 So. 2d at 1197; Rimmer, 825 So. 2d at 320-21, but it

also comports with the two legal principles underlying Melbourne—that

peremptory strikes are presumed to be nondiscriminatory and that the party

opposing the strike bears the burden of persuasion throughout the process.

Melbourne, 679 So. 2d at 764. If the opponent of a peremptory strike fails to

challenge as pretext a proffered reason found to be race-neutral, then the trial court

is usually left with nothing other than the legal presumption that the proponent

exercised the strike for a genuine reason. 1 See Rimmer, 825 So. 2d at 321 (holding

that the appellant failed to preserve the issue of whether the trial court properly



        1. We say “usually” because even if the strike opponent fails to contest the
proponent’s proffered facially race-neutral explanation, there will be some cases in
which the trial judge does not believe the proffered reason to be genuine despite
the contrary presumption, in which case the correct ruling under Melbourne would
be to sustain the opponent’s objection and disallow the strike. 679 So. 2d at 764
(explaining that the trial judge’s ultimate ruling is driven by the determination of
whether the neutral reason is genuine based on his or her assessment of
credibility). It is entirely permissible for a trial judge to independently question the
proponent of the strike if he or she has a basis to do so or even turn to the opponent
and request a response, but that the trial court may do so does not mean that the
trial court must do so in order to independently create a record sufficient to avoid
reversal on appeal.


                                         -7-
granted the State’s peremptory strike and noting that the trial court could not be

“faulted for accepting the facial reason offered by the State, especially where the

State’s factual assertion went unchallenged by the defense”). Without requiring

the strike opponent to object to the proponent’s proffered facially neutral

explanation, prior to the trial court’s step 3 genuineness determination, we would

be effectively relieving the opponent of its burden of persuasion to prove

purposeful racial discrimination and of its obligation to create a record for

appellate review.2

      Despite the sound reasoning of Floyd and our continued reliance on it,

language in this Court’s decision in Hayes, 94 So. 3d at 463, which a plurality of

this Court relied upon in its nonprecedential opinion in Spencer, 238 So. 3d at 714,

wrongly suggests that the trial court is required to create a record for appellate



      2. Although we are not altering our Melbourne procedure, we note that
under the federal rule, the strike opponent must make a prima facie showing of
purposeful racial discrimination at step 1. See Batson v. Kentucky, 476 U.S. 79,
96-97 (1986); see, e.g., United States v. Ochoa-Vasquez, 428 F.3d 1015, 1038-39
(11th Cir. 2005). However, that strike opponents are not required to make this
prima facie showing at step 1 in Florida, see State v. Whitby, 975 So. 2d 1124,
1127 (Fla. 2008) (Pariente, J., concurring) (noting that Florida law requires race-
neutral explanations more often than federal law because Florida law “requires
much less of the objecting party to mandate a [Melbourne] inquiry”), only
underscores that they are required to make it somewhere during the three-step
process. Because, at step 2, the burden to produce a facially race-neutral
explanation shifts to the proponent of the strike, this necessarily means that the
opponent must satisfy its ultimate burden of persuasion prior to the trial court’s
genuineness determination in step 3.

                                         -8-
review of otherwise unpreserved error by “undertak[ing] an on-the-record

genuineness inquiry” every time a party opposes a peremptory strike citing

Melbourne. This language is dicta, however, because Hayes was not a

preservation case. See State v. Yule, 905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005)

(Canady, J., specially concurring) (“A holding consists of those propositions along

the chosen decisional path or paths of reasoning that (1) are actually decided, (2)

are based upon the facts of the case, and (3) lead to the judgment. If not a holding,

a proposition stated in a case counts as dicta.” (quoting Michael Abramowicz &

Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005)). More

specifically, the issue in Hayes “was not whether the trial court erred in failing to

ask the opponent of the strike, on its own initiative, to provide reasons to find

pretext.” Spencer, 238 So. 3d at 719 n.7 (Lawson, J., concurring in result).

Rather, the issue in Hayes was “whether the trial court erred, first, in expressly

applying the for-cause standard—rather than the ‘genuineness’ standard—to its

evaluation of the neutral reason the proponent gave for the strike.” Id. (citing

Hayes, 94 So. 3d at 456-57). Accordingly, we disapprove of the dicta in Hayes,

relied upon by the plurality in Spencer, and reaffirm our decision in Floyd, which

establishes that “[o]nce the [proponent of the strike] has proffered a facially race-

neutral reason, [the opponent] must place the court on notice that he or she




                                         -9-
contests” the genuineness of “the reason,” Floyd, 569 So. 2d at 1229, to preserve

any objection to the propriety of the genuineness finding on appeal.

      In this case, Johnson did not make a specific objection to the State’s

proffered facially race-neutral reason for the strike. Accordingly, Johnson failed to

preserve his challenge to the trial court’s step 3 genuineness determination. See id.

at 1230; see also Melbourne, 679 So. 2d at 764-65.

                                   CONCLUSION

      Under Florida law, the opponent of a peremptory strike cannot simply sit

silent—failing to respond to a proffered facially race-neutral reason and failing to

object as to why the trial court should not accept that explanation—yet challenge

that reason as a pretext for discrimination and the trial court’s ruling as insufficient

for the first time on appeal. See Floyd, 569 So. 2d at 1230. To hold otherwise

would not only be inconsistent with the general law of preservation, it would also

improperly relieve the opponent of the strike of the obligation to prove purposeful

racial discrimination, in disregard of the presumption that peremptory strikes are

nondiscriminatory. See Melbourne, 679 So. 2d at 764-65. Accordingly, we hold

that the party opposing a peremptory strike must make a specific objection to the

proponent’s proffered race-neutral reason for the strike, if contested, to preserve

the claim that the trial court erred in concluding that the proffered reason was

genuine.


                                         - 10 -
      We quash the Fourth District’s decision to the contrary in Johnson and

approve the certified conflict cases to the extent they are consistent with this

opinion.

      It is so ordered.

CANADY, C.J., and POLSTON and MUÑIZ, JJ., concur.
LABARGA, J., concurs in result with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

LABARGA, J., concurring in result.

      I concur in the result reached by the majority, that the burden rests on the

party opposing a peremptory strike to contemporaneously object to the race-neutral

reason offered by the proponent. See majority op. at 10.

      I write separately to caution that today’s holding does not absolve trial

courts of the responsibility to conduct a thorough Melbourne3 inquiry and to allow

counsel to contemporaneously object during the process. After the proponent

offers a race-neutral reason for a peremptory strike, opposing counsel is entitled

to—and trial courts must fully permit counsel to—raise a contemporaneous

objection. This is essential to preserving the record.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions



      3. Melbourne v. State, 679 So. 2d 759 (Fla. 1996).


                                        - 11 -
      Fourth District - Case No. 4D15-4452, 4D15-4519, and 4D15-4539

      (Broward County)

Ashley Moody, Attorney General, Tallahassee, Florida, Celia Terenzio, Senior
Assistant Attorney General, and Kimberly T. Acuña, Assistant Attorney General,
West Palm Beach, Florida,

      for Petitioner

Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional
Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District,
West Palm Beach, Florida,

      for Respondent




                                      - 12 -
