          Third District Court of Appeal
                                  State of Florida

                             Opinion filed March 20, 2019.
            Not final until disposition of timely filed motion for rehearing.

                                  ________________

                                   No. 3D18-193
                            Lower Tribunal No. 15-17145
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                                     David Ruiz,
                                       Appellant,

                                           vs.

                               The State of Florida,
                                       Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Stacy D. Glick,
Judge.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for appellant.

      Ashley Moody, Attorney General, and Gabrielle Raemy Charest-Turken,
Assistant Attorney General, for appellee.


Before SALTER, LINDSEY, and HENDON,1 JJ.

        SALTER, J.

1   Judge Hendon did not participate in oral argument.
      The defendant, David Ruiz, appeals his judgment of conviction and

sentences for battery on a law enforcement officer, resisting an officer with

violence, and simple battery. We reverse the convictions under Mosely v. State,

842 So. 2d 279, 280-81 (Fla. 3d DCA 2003). We hold that the trial court abused its

discretion in curtailing defense counsel’s questions of the jury venire about the sole

defense theory.2

      The theory of defense at trial was that the officers used excessive force

during Ruiz’s arrest. During voir dire, the defense attempted three times to ask the

prospective jurors their views about police use of excessive force. Each question

was met with an objection by the state. After a side bar on the state’s objection to

the third question, the trial court ordered defense counsel not to discuss excessive

force. This line of questioning ceased.

      The trial court’s ruling denied the defendant his right to a fair trial and to an

impartial jury by restricting questioning of the prospective jurors about the sole

defense in the case. Mosely, 842 So. 2d at 280-81. Mosely concluded that “where a

juror's attitude about a particular legal doctrine . . . is essential to a determination

of whether challenges for cause or peremptory challenges are to be made, it is well

settled that the scope of the voir dire properly includes questions about and

2 Additionally, we note the state’s concession that the trial court erred in
concluding that it lacked discretion to withhold adjudication. The trial court had
such discretion, State v. Hewitt, 702 So. 2d 633, 636 (Fla. 1997), and we reverse
and remand the sentences for that reason.

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references to that legal doctrine . . . .” Id. at 281 (quoting Lavado v. State, 469 So.

2d 917, 919-20 (Fla. 3d DCA 1985) (Pearson, J., dissenting) (dissent adopted in

Lavado v. State, 492 So. 2d 1322, 1323 (Fla. 1986)).

      It is improper to curtail questioning on the theory of defense, even where

counsel is permitted to inquire generally. Counsel must be permitted to question

the prospective jurors about their willingness and ability to accept the defense’s

theory. Harrison v. State, 172 So. 3d 1018, 1022 (Fla. 1st DCA 2015). If defense

counsel knew nothing else about the prospective jurors, “the single thing that

defense counsel needed to know was whether the prospective jurors could fairly

and impartially consider the defense of [excessive use of force].” Lavado v. State,

492 So. 2d 1322, 1323 (Fla. 1986).

      Reversed and remanded.




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