          Supreme Court of Florida
                                    ____________

                                    No. SC16-1235
                                    ____________

                                 MOSES MCCRAY,
                                    Petitioner,

                                           vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                    [May 25, 2017]

PARIENTE, J.

      We have for review McCray v. State, 199 So. 3d 1006 (Fla. 4th DCA 2016),

in which the Fourth District Court of Appeal certified conflict with the Third

District Court of Appeal’s decision in McIntosh v. State, 743 So. 2d 155 (Fla. 3d

DCA 1999), “to the extent the results of [McCray] . . . may be perceived to conflict

with McIntosh.” McCray, 199 So. 3d at 1010. We accepted jurisdiction based on

this certified conflict. See art. V, § 3(b)(4), Fla. Const.

      The issue in this case involves the exercise of peremptory challenges in jury

selection and whether a party has the right to “unstrike,” or withdraw a previously
exercised peremptory challenge, when it has exhausted its peremptory challenges

and the opposing party subsequently accepts the jury panel.

      We agree with the Fourth District that the trial court did not abuse its

discretion in denying Petitioner Moses McCray’s request to “unstrike” a juror

under the circumstances presented. However, we disapprove the Fourth District’s

decision to the extent that it endorses a blanket rule prohibiting the withdrawal of a

peremptory challenge after a party has exhausted its peremptory challenges. As we

explain, McIntosh demonstrates that the withdrawal of a peremptory challenge

when a party has already exhausted its peremptory challenges could be warranted

by unusual or extenuating circumstances. We emphasize, however, that even

though a party may exercise an unused peremptory challenge at any time before

the jury is sworn and a trial court has discretion to grant additional peremptory

challenges, the party does not have a “right” to “unstrike” a juror.

                                       FACTS

      The Fourth District set forth the discussions that occurred during voir dire

between the trial court, the parties, and Juror 3.9—the juror McCray sought to

remove from the jury panel after exercising his last remaining peremptory

challenge on Juror 2.5:

             JUROR 3.9: My name . . . I live in Lake Worth. My
             occupation, I’m working for school district. I’m a driver.
             I’m married. My wife is (indiscernible). I do have three


                                         -2-
            children. They are high school. I have never been served
            jury before.[1]

            COURT: Is that a no?

            JUROR 3.9: No. I have never been in crime victim of
            any crime. I don’t have any friends in law enforcement.
            And I will follow the law explained. And yes, I will give
            fair trial to both sides. And no reason I cannot serve.

            ....

            STATE: [Juror 3.9], how are you?

            JUROR 3.9: Fine.

            STATE: Good. We have several folks here that have
            nice accents and I can kind of tell from some individuals
            having served on prior jury service or their answers that
            there was no issue with language. But I wanted to check
            with you to see you have a nice accent but I want to make
            sure are you understanding everything that we’re saying?

            JUROR 3.9: Yes.

            STATE: Excellent. No language problem if you were to
            serve on the jury?

            JUROR 3.9: No.

      The defense did not ask Juror 3.9 any direct questions.
             During the parties’ initial round of cause challenges, the
      defendant did not challenge Juror 3.9 for cause.
             During the parties’ peremptory strikes, the defendant used his
      last peremptory strike on Juror 2.5. That strike put Juror 3.9 “in the

       1. The venire panel was asked a series of questions regarding their
occupation, family life, past experiences on a jury, and where they resided. Most
jurors gave short answers to each question in sequential order as Juror 3.9 did.


                                        -3-
box” as the sixth juror. The state, which had two peremptory strikes
remaining, accepted the panel, including Juror 3.9.
       The defendant then stated he wanted to challenge Juror 3.9 for
cause because he had “a serious question about [Juror 3.9’s] ability to
speak English.”
       In response, the trial court stated that Juror 3.9 gave “direct and
positive,” “appropriate[ ]” answers; “[h]e did not hesitate in response
to any questions;” and he appeared insulted or angered when the state
questioned his English. The court therefore denied the defendant’s
cause challenge to Juror 3.9.
       The defendant then asked for two additional preemptory strikes,
after which the following discussion occurred:

      COURT: And the reason is because I denied your cause
      challenge [to juror 3.9]?

      DEFENSE: Yes, sir.

      COURT: That would be denied.

      ....

      DEFENSE: [Judge], can we back-strike or unstrike [Juror
      2.5] then?

      COURT: Unstrike?

      DEFENSE: Or back-strike.

      COURT: This is a first for me.

      STATE: I have never heard of an unstrike.

      COURT: It’s not a back-strike because [Juror 2.5 has]
      already been stricken.

      ....

      DEFENSE: . . . You’re right, Judge. We’ve already
      stricken [Juror 2.5].

                                  -4-
             COURT: I don’t know how I can unstrike a strike
             because then that messes up everybody else’s decisions
             on what you struck or so. That’s our jury . . . .

McCray, 199 So. 3d at 1007-08.

      The Fourth District held that, based on its precedent in Davis v. State, 922

So. 2d 454 (Fla. 4th DCA 2006), the trial court did not abuse its discretion in

denying McCray’s motion to “unstrike” Juror 2.5, which was a request to withdraw

his last peremptory challenge of Juror 2.5 after he had exhausted his peremptory

challenges and the State had subsequently accepted the jury panel. McCray, 199

So. 3d at 1008. As the Fourth District explained,

      after the defendant used his last peremptory strike on Juror 2.5, the
      state accepted the panel, thereby revealing the state’s strategy to
      accept Juror 3.9. Allowing the defendant to reveal the state’s strategy
      to accept Juror 3.9, and then allowing the defendant to “unstrike”
      Juror 2.5 in order to strike Juror 3.9, would have prejudiced the state.

Id.

                                    ANALYSIS

      We are presented with the issue of whether, after a party has exhausted its

peremptory challenges and the opposing party subsequently accepts the jury panel,

a party has the right to withdraw a formerly exercised peremptory challenge on one

juror and use that challenge on another juror after the jury panel has been accepted

by the opposing party. “Under our common law, the time and manner of

challenging and swearing jurors have traditionally rested within the sound

                                        -5-
discretion of the trial court.” Tedder v. Video Elec., Inc., 491 So. 2d 533, 534 (Fla.

1986). Accordingly, the standard of review of a trial court’s denial of a party’s

motion to withdraw a formerly exercised peremptory strike is abuse of discretion.

We begin our analysis by explaining the process by which parties can ensure

during voir dire that specific jurors are not placed on the jury panel. We then

discuss the Fourth District’s decision below and the certified conflict case,

McIntosh, while analyzing whether the Fourth District’s decision created a blanket

rule prohibiting a party from withdrawing a peremptory challenge after that party

has exhausted all peremptory challenges.

                              Jury Selection Process

      During jury selection, “Florida law provides both cause and peremptory

challenges to both sides involved in criminal proceedings.” Busby v. State, 894

So. 2d 88, 98 (Fla. 2004) (citing §§ 913.03, 913.08, Fla. Stat. (2003)). “Section

913.03 of the Florida Statutes outlines the grounds to support cause challenges.”

Id. As this Court has explained, “[t]he necessity of excusing a juror for cause

arises where ‘any reasonable doubt exists as to whether the juror possesses an

impartial state of mind.’ ” Hayes v. State, 94 So. 3d 452, 460 (Fla. 2012) (quoting

Busby, 894 So. 2d at 95). Cause challenges are “unlimited in number.” Id. (citing

Busby, 894 So. 2d at 99).




                                         -6-
      In contrast to cause challenges, peremptory challenges “are limited in

number and have traditionally been exercised according to a party’s unfettered

discretion.” Id. This Court has long recognized that peremptory challenges are

“one of the most important of the rights secured to the accused.” Id. at 459

(quoting Smith v. State, 59 So. 3d 1107, 1111 (Fla. 2011)). In fact, “[a]ffording a

criminal defendant the full use of his or her allotted peremptory challenges is an

essential part of securing a fair and impartial jury under Florida’s constitution, and

his or her use of peremptory challenges is limited only by the rule that such

challenges may not be used to exclude prospective jurors because of their race,

ethnicity, or gender.” Id. at 460 (citing Smith, 59 So. 3d at 1111).

      Florida Rule of Criminal Procedure 3.350(a) provides that the number of

peremptory challenges allowed to a party is determined by the type of offense

charged. However, a “trial judge has discretion to grant or deny additional

peremptory challenges.” Parker v. State, 456 So. 2d 436, 442 (Fla. 1984); accord

Fla. R. Crim. P. 3.350(e). Prior to the time the jury is sworn, “[a] trial judge has no

authority to infringe upon a party’s right to challenge any juror, either peremptorily

or for cause.” Gilliam v. State, 514 So. 2d 1098, 1099 (Fla. 1987) (quoting

Jackson v. State, 464 So. 2d 1181, 1183 (Fla. 1985)). As this Court explained in

Gilliam, the “denial of this right is per se reversible error.” Id.




                                          -7-
      Once a jury is sworn but before the presentation of evidence, however, a

peremptory challenge may only be granted upon a showing of good cause. Valle

v. State, 581 So. 2d 40, 44 (Fla. 1991); see also Fla. R. Crim. P. 3.310 (providing

that a party may challenge a prospective juror before the jury is sworn, and only

for “good cause” after the jury is sworn but before the presentation of evidence).

      Peremptory challenges “work in tandem” with cause challenges to “permit

the removal of a potential juror in whom the striking party perceives a certain bias

or hostility.” Hayes, 94 So. 3d at 460. In other words, peremptory challenges do

not entitle a defendant “to have a particular composition of jury.” Rich v. State,

807 So. 2d 692, 693 (Fla. 3d DCA 2002) (citing Kibler v. State, 546 So. 2d 710,

712-13 (Fla. 1989)); see also Taylor v. Louisiana, 419 U.S. 522, 538 (1975)

(“Defendants are not entitled to a jury of any particular composition.”).

      As the Court explained in Jackson, one manner of exercising a peremptory

challenge before the jury is sworn is through backstriking. 464 So. 2d at 1183.

“The term ‘backstriking’ refers to ‘a party’s right to retract his acceptance and

object to a juror at any time before that juror is sworn.’ ” Hayes, 94 So. 3d at 456

n.1 (quoting Dobek v. Ans, 475 So. 2d 1266, 1267-68 (Fla. 4th DCA 1985)); see

also Hunter v. State, 660 So. 2d 244, 248 (Fla. 1995). For instance, if a juror

whom the party previously accepted was placed on the jury panel, a party could




                                         -8-
use a remaining peremptory challenge at a later time, but before the jury is sworn,

to peremptorily challenge that juror and remove the juror from the jury panel.

      McCray contends that his attempted withdrawal of his peremptory challenge

of Juror 2.5 cannot be characterized as a “backstrike,” but rather as an “unstrike.”

The term “unstrike” has not been used in any reported decision other than in the

lower court’s opinion. Based on the facts of this case, the term is best defined as

the practice of withdrawing a peremptory challenge used on one juror and then

using that same peremptory challenge to exclude another juror. In other words, a

party “unstriking” a juror requests that the prior peremptory challenge be

withdrawn so that the juror originally challenged is placed back on the jury panel

and the peremptory challenge can be used to remove another juror already placed

on the jury panel.

      Against this backdrop of how a party may exercise peremptory challenges,

the question posed by the certified conflict is whether there are limits to the

exercise of peremptory challenges. In order to answer this question, we review the

Fourth District’s decision in McCray and the certified conflict decision, McIntosh.

                              McCray and McIntosh

      The Fourth District concluded that McCray’s argument that the trial court

abused its discretion in not permitting him to withdraw his last exercised

peremptory challenge to use on another juror already placed on the jury panel after


                                         -9-
the State had accepted the jury panel, “lacks merit, pursuant to our holding in

Davis v. State, 922 So. 2d 454 (Fla. 4th DCA 2006).” McCray, 199 So. 3d at

1008. In Davis, “the State used six of its ten peremptory strikes [during jury

selection]. The defense used all ten of its peremptory strikes. Thereafter, the jury

panel and an alternate was accepted by both sides.” Id. (quoting Davis, 922 So. 2d

at 455). However, “[d]efense counsel then told the [trial] court that [the defendant]

wished to withdraw a peremptory challenge made on one juror and use it to strike

another.” Id. The trial court denied the request. As the Davis court explained:

      The [trial] court’s rationale in denying the “backstrike” request was
      that the prosecutor’s strategy in utilizing peremptory challenges was
      based partially on the manner in which the defense exercised its
      peremptory challenges. The court, therefore, concluded that allowing
      the defendant to withdraw a challenge so late in the process would
      prejudice the state.

Davis, 922 So. 2d at 455. The Davis court affirmed, reasoning as follows:

             Although it is clearly reversible error to deny a challenge to a
      juror when the defendant has not exhausted all of his peremptory
      challenges prior to the jury’s being sworn, that is not the case where,
      as here, a party has exhausted all of its peremptory challenges. Under
      the facts of this case, we cannot say that the trial court erred in
      denying [the defendant’s] request to withdraw a peremptory [strike]
      and then backstrike a previously accepted juror.

Id. (citation omitted).

      The Fourth District in McCray held that, “[s]imilar to Davis, we cannot say

here that the trial court erred in denying the defendant’s motion to ‘unstrike’ Juror

2.5, upon whom he used his last peremptory strike, so that he could use his last

                                        - 10 -
peremptory strike on Juror 3.9,” who had previously been placed on the jury panel.

McCray, 199 So. 3d at 1008.2 The Fourth District reasoned that, “as in Davis, after

the defendant used his last peremptory strike on Juror 2.5, the state accepted the

panel, thereby revealing the state’s strategy to accept Juror 3.9. Allowing the

defendant to reveal the state’s strategy to accept Juror 3.9, and then allowing the

defendant to ‘unstrike’ Juror 2.5 in order to strike Juror 3.9, would have prejudiced

the state.” Id. (emphasis omitted).

      McCray contends that, as opposed to Davis, the Third District’s decision in

McIntosh applied the proper analysis for evaluating whether a trial court abuses its

discretion in refusing a party’s request to withdraw a previously exercised

peremptory challenge on one juror after the party had exercised all peremptory

challenges, to then use that peremptory challenge on a juror already placed on the

jury panel. In McIntosh, “at the conclusion of jury selection, the venire panel had

been exhausted but only eleven jurors had been selected for the twelve-person



       2. McCray also contends that Davis was decided incorrectly because it
“applied holdings in backstriking cases in an ‘unstriking’ context,” and therefore
the Fourth District’s reliance on Davis in McCray was misplaced. We disagree.
The rationale in both cases for denying the request for an additional peremptory
strike was that allowing an additional peremptory challenge would prejudice the
opposing party because the opposing party had accepted the jury. See Davis, 922
So. 2d at 455. Moreover, the only holding the Fourth District applied in Davis was
this Court’s holding that it is reversible error to deny a request for a peremptory
challenge when the party has not exhausted its peremptory challenges. See Hunter,
660 So. 2d at 248-49; Gilliam, 514 So. 2d at 1099.


                                        - 11 -
jury.” 743 So. 2d at 156. To complete the jury panel, “the State indicated that it

was willing to withdraw the previously exercised peremptory challenge against

juror Blanco. The defense objected to this procedure, saying that ‘had the State . . .

kept her on [the jury] initially, it might have changed some of my decisions after

that point.’ ” Id. The defendant then requested an additional peremptory

challenge, “not to exercise against juror Blanco, but instead to exercise against a

different juror, juror Rodriguez. Defense counsel indicated that she had accepted

juror Rodriguez ‘given the contents of the panel at that time.’ ” Id. The trial court

denied the request for the additional peremptory challenge. On appeal, the Third

District affirmed, reasoning:

             We find no abuse of discretion in the trial court’s seating of
      juror Blanco over defense objection. If defense counsel predicated the
      exercise of at least some of the peremptory challenges on the theory
      that juror Blanco, having been stricken by the State, would not serve
      on the jury, then it would be understandable if the defense had
      requested an additional peremptory challenge to strike juror Blanco.
      In that circumstance, we would have a different case. Juror Blanco
      was, however, acceptable to the defense and the request instead was to
      strike a different juror. The claim of harm here was entirely
      speculative and the objection was properly overruled.

Id. Thus, McCray asserts that McIntosh determined whether a trial court abused its

discretion in granting a motion to “unstrike” a juror by evaluating the harm and

available remedy resulting from the “unstrike.” However, as the State points out,

even accepting McCray’s argument that McIntosh requires an evaluation of the

harm and available remedy in granting a motion to “unstrike” a juror, the Third

                                        - 12 -
District in McIntosh recognized that unstriking can adversely affect a party’s jury

strategy and may be prejudicial to the opposing party. As the Third District

explained, had the defendant in McIntosh objected to the juror the State’s proposed

“unstrike” sought to place back on the jury panel, then the Third District would

have been presented with “a different case.” Id.

      Accordingly, we conclude that under the particular facts of this case, the trial

court did not abuse its discretion in denying McCray’s request to “unstrike” Juror

2.5 after McCray had exhausted his peremptory challenges and the State had

accepted the jury panel. As the Fourth District explained:

      [A]fter the defendant used his last peremptory strike on Juror 2.5, the
      state accepted the panel, thereby revealing the state’s strategy to
      accept Juror 3.9. Allowing the defendant to reveal the state’s strategy
      to accept Juror 3.9, and then allowing the defendant to “unstrike”
      Juror 2.5 in order to strike Juror 3.9, would have prejudiced the state.

McCray, 199 So. 3d at 1008 (emphasis omitted). We agree with the State that

sanctioning the practice of withdrawing a peremptory challenge of a juror after the

moving party has exhausted its peremptory challenges and the opposing party has

accepted the jury “could not fail to be productive of mischief.” Biddle v. State, 10

A. 794, 794 (Md. 1887). As Maryland’s highest state court explained over a

century ago, this practice

      would lead inevitably to experiments in the formation of juries in
      criminal cases. A party accused might exhaust his right of peremptory
      challenge, and take his chance of getting jurors more favorable to him
      from among talesman to be returned; but if disappointed in that, and

                                       - 13 -
      in order to exclude parties not liked, he would recall his previous
      challenges, and take jurors that had been before excluded.

 Id. This reasoning is equally sound today.

      We note, however, that there may be rare circumstances where the

withdrawal of a peremptory challenge after the party has exhausted all peremptory

challenges may be appropriate. The Third District’s decision in McIntosh, where

the venire panel had been exhausted and the juror that one party sought to

peremptorily challenge was acceptable to the opposing party, is such a rare

circumstance. Thus, to the extent the Fourth District’s decision in McCray

endorses a blanket rule prohibiting in all circumstances the withdrawal of a

peremptory challenge after a party has exhausted such challenges, we disapprove

of such language. Such a blanket rule would be incompatible with a “party’s right

to challenge any juror, either peremptorily or for cause, prior to the time the jury is

sworn,” which “a trial judge has no authority to infringe upon.” Hunter, 660 So.

2d at 248 (quoting Gilliam, 514 So. 2d at 1099). While “denial of this right is per

se reversible error” when a party has not exhausted its peremptory challenges,

Gilliam, 514 So. 2d at 1099, the exhaustion of a party’s peremptory challenges

should not automatically foreclose a party’s attempt to withdraw a juror prior to the

jury being sworn. Indeed, even after a juror is sworn, but before any evidence is

presented, a party may challenge the juror for good cause. Fla. R. Crim. P. 3.310.




                                         - 14 -
      Our rejection of a blanket rule prohibiting in all instances the withdrawal of

a peremptory challenge after a party has exhausted its peremptory challenges must

be considered, however, against the backdrop of our previous emphasis that

“[p]eremptory challenges merely are a ‘means of assuring the selection of a

qualified and unbiased jury.’ ” Jefferson v. State, 595 So. 2d 38, 41 (Fla. 1992)

(quoting Batson v. Kentucky, 476 U.S. 79, 91 (1986)). In other words, we

emphasize that the rare instance when the withdrawal of a peremptory challenge is

granted after a party has exhausted its peremptory challenges must not be the

design of gamesmanship, as “[e]stablished case law rejects the proposition that a

defendant is entitled to have a particular composition of jury.” Rich, 807 So. 2d at

693 (citing Kibler, 546 So. 2d at 712-13); see also Taylor, 419 U.S. at 538.

                                   THIS CASE

      In this case, McCray did not challenge Juror 3.9 for cause or peremptorily

prior to exhausting his peremptory challenges. McCray does not claim that any

reasonable doubt existed about the juror’s impartiality. Only after exhausting his

peremptory challenges, when the State—which still had a number of peremptory

challenges remaining—accepted the jury panel, did McCray challenge Juror 3.9 for

cause. Once the trial court denied the cause challenge, which McCray does not

contest, McCray sought two additional peremptory challenges, which the trial

court denied and which McCray also does not contest. It was not until after


                                       - 15 -
McCray’s unsuccessful efforts to strike Juror 3.9 for cause and obtain two

additional peremptory challenges that he sought to withdraw his prior peremptory

challenge to Juror 2.5 so that he could use that peremptory challenge to remove

Juror 3.9 from the jury panel. At this point, the State had already accepted the jury

panel, thereby revealing its jury selection strategy to accept Juror 3.9.

Accordingly, under the facts of this case, the trial court did not abuse its discretion

in denying McCray’s request to withdraw his peremptory challenge of Juror 2.5,

since doing so would have prejudiced the State.

                                   CONCLUSION

      Under the facts of this case, we approve the Fourth District’s decision that

the trial court did not abuse its discretion in rejecting McCray’s motion to

withdraw his peremptory challenge of Juror 2.5 to instead use that peremptory

challenge on Juror 3.9, who was already seated on the jury panel, after McCray had

exhausted his peremptory challenges and the State had accepted the jury panel.

However, we disapprove the Fourth District’s opinion in McCray to the extent that

it can be read as endorsing a blanket rule prohibiting in any instance the

withdrawal of a peremptory challenge after a party has exhausted its peremptory

challenges but before the jury is sworn. As McIntosh demonstrates, after a party

has exhausted its peremptory challenges, the withdrawal of a peremptory challenge

could be warranted by unusual or extenuating circumstances.


                                         - 16 -
      It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, CANADY, and LAWSON, JJ., concur.
POLSTON, J., concurs in result.

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

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

      Fourth District - Case No. 4D14-907

      (Palm Beach County)

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public
Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia A. Terenzio,
Bureau Chief, and Jeanine Germanowicz, Assistant Attorney General, West Palm
Beach, Florida,

      for Respondent




                                      - 17 -
