         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D15-5803
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SHAWNEST ANGELO IVEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court, Jackson County.
Shonna Young Gay, Judge.

                        February 20, 2018

                    ON MOTION FOR REHEARING

PER CURIAM.

     We deny the State’s motion for rehearing, but we pose the
following certified question of great public importance:

    HAS A DEFENDANT WHO ACCEPTS A JURY, BUT RENEWED A
    PREVIOUSLY-RAISED OBJECTION TO A STATE PEREMPTORY
    CHALLENGE AFTER THE CHALLENGED JUROR HAS BEEN
    EXCUSED BUT BEFORE THE JURY IS SWORN, WAIVED THAT
    OBJECTION?

Art. V, § 3, Fla. Const. We view this important question as
unanswered, or at least left open, under the decision in Joiner v.
State, 618 So. 2d 174, 176 (Fla. 1993). In that case, the defendant
“affirmatively accepted the jury immediately prior to its being
sworn without reservation of his earlier-made objection.” Id. The
Court said that “counsel’s action in accepting the jury led to a
reasonable assumption that he had abandoned, for whatever
reason, his earlier objection.” Id. It noted, however, that:

    Had [defendant] renewed his objection or accepted the
    jury subject to his earlier [peremptory] objection, we
    would rule otherwise. Such action would have apprised
    the trial judge that [defendant] still believed reversible
    error had occurred. At that point the trial judge could
    have exercised discretion to either recall the challenged
    juror for service on the panel, strike the entire panel and
    begin anew, or stand by the earlier ruling.

Id. (emphasis added). As the italicized language reflects, the Court
envisioned three options at the time of the renewed objection:
recall the challenged juror, strike the panel and start over, or stand
pat.

     But once a jury is accepted and a challenged juror is dismissed
and unavailable, as in this case, only two options remain: strike
the panel or stand by the prior ruling. That only two of these three
options remain after jurors are dismissed, however, does not strike
us as a basis to alter the long-standing principle that a defendant
has a right to lodge an objection up until the jury is sworn, as Ivey
did in this case. See, e.g., Jackson v. State, 464 So. 2d 1181, 1183
(Fla. 1985); O’Connor v. State, 9 Fla. 215, 229 (1860); Shelby v.
State, 301 So. 2d 461, 462 (Fla. 1st DCA 1974). Drawing the line
at this point makes the most sense because it is the final step
before the jury selection process ends and trial begins. As such, we
pass upon the certified question and answer it in the negative.

     In light of the three-option language in Joiner, however, a
plausible argument is that accepting a jury and allowing a
challenged juror to be dismissed is sufficient grounds to conclude
that the peremptory objection has been abandoned entirely, which
would move the existing timeline back and preclude a renewed
objection after juror dismissal but before the jury is sworn. To
allow our supreme court to consider the matter, we certified the
question above for its consideration. Barritt v. State, 517 So. 2d 65,
68 (Fla. 1st DCA 1987) (certifying question due to perceived need

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to clarify supreme court caselaw), decision quashed, 531 So. 2d 338
(Fla. 1988) (accepting jurisdiction and quashing decision).

MAKAR, J., and BROWN, JOHN, ASSOCIATE J., concur; WINSOR, J.,
dissents in part with opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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WINSOR, J., dissenting in part.

     The panel reversed Ivey’s conviction, concluding the trial
court should have disallowed a particular peremptory challenge.
Because Ivey did not preserve this argument, we should have
affirmed, see Op. at 4 (Winsor, J., dissenting in part), and we
should now grant rehearing to correct our error. For the same
reason, we should not pass upon the question certified.
Irrespective of whether a defendant generally may later renew a
previously waived objection, Ivey did not do that. No matter the
certified question’s answer, Ivey’s objection was waived.
Nonetheless, the panel’s decision did pass on the certified
question, so our decision today confers discretionary jurisdiction.
If the supreme court accepts review—and if it agrees with the
panel that Ivey lodged a sufficient renewed objection—it could aid
this court (and others) by clarifying its Joiner holding.
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Andy Thomas, Public Defender, Jennifer P. LaVia, Special Public
Defender, for Appellant.

Pamela Jo Bondi, Attorney General, Michael McDermott,
Assistant Attorney General, for Appellee.




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