                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

WILLIE SMITH, JR.,                    NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-5037

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed August 14, 2014.

An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.

Nancy A. Daniels, Public Defender, and L. Allen Beard, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      The Appellant, Willie Smith, Jr., was charged with two counts of failure of a

sex offender to report or register a change in permanent or temporary address. The

jury found the Appellant guilty as charged. The Appellant appeals his convictions
and argues that the State improperly exercised a peremptory strike to exclude an

African-American venireperson. Because it appears from the record that the trial

court failed to determine the genuineness of the State’s challenge, we are required

to reverse.

      The State argues that the peremptory strike issue was not preserved, but we

do not agree. Generally, a party must renew an objection to a peremptory strike

before affirmatively accepting the jury. Joiner v. State, 618 So. 2d 174, 176 (Fla.

1993) (counsel’s acceptance of the jury led to a reasonable assumption that he had

abandoned his objection). However, if the jury is sworn only minutes after the

initial objection, an explicit renewal of the objection is not necessary. Romero v.

State, 105 So. 3d 550, 552 (Fla. 1st DCA 2012) (citing to Gootee v. Clevinger, 778

So. 2d 1005, 1009 (Fla. 5th DCA 2000)). Here, the jury was sworn only a matter

of minutes after the objection. As such, the objection did not need to be renewed,

and it is not reasonable to believe defense counsel abandoned the objection. This

issue was preserved.

      We now turn to the issue at bar. During jury selection, the State exercised a

peremptory strike for an African-American venireperson. Defense counsel asked

for a “reason,” and the following exchange occurred:

      STATE: She’s 18 years old. She’s unemployed. She’s only been in
      Escambia County for two years. The witness[] in this case is a young
      black female who had a baby with the defendant, and that’s why he
      was over at her house because he was having a baby with her. I just
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      think - I would rather not run the risk – she would have emotional
      relationship or response to the girlfriend in this case.

      DEFENSE COUNSEL: She doesn’t have any children, though.

      STATE: It doesn’t matter.

      THE COURT: The State’s alleging that – neutral reason. So any
      response?

      DEFENSE COUNSEL: No, sir.

      THE COURT: Objection overruled.

      In Melbourne v. State, the Florida Supreme Court set forth the following

clear guidelines for challenging a peremptory strike on racial grounds.

      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....

      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.

679 So. 2d 759, 764 (Fla. 1996) (footnotes omitted).

      The issue in this case involves the third step. The genuineness inquiry

requires that the trial court weigh the reasons and the counsel offering those

reasons in light of the circumstances of the case and the voir dire. Hayes v. State,
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94 So. 3d 452, 462 (Fla. 2012). Trial courts may consider the following relevant

circumstances when determining genuineness of a peremptory strike: (1) the racial

make-up of the venire, (2) prior strikes exercised against the same group, (3) if the

reason is equally applicable to an unchallenged juror, or (4) if the juror is being

singled out for special treatment. Melbourne, 679 So. 2d at 764 n.8 (citing State v.

Slappy, 522 So. 2d 18 (Fla. 1988)). However, this list of circumstances is not

exhaustive, and the trial court is not required “to recite a perfect script or incant

specific words in order to properly comply” with a genuineness analysis. Hayes,

94 So. 3d at 463.

      A trial court’s genuineness analysis may be implicit. See Fleming v. State,

825 So. 2d 1027, 1029 (Fla. 1st DCA 2002) (finding that “by overruling the

defense’s objections, the lower court made an implicit finding that the [S]tate’s

strikes were genuine”); Bowden v. State, 787 So. 2d 185, 188 (Fla. 1st DCA 2001).

However, this Court has clarified that if the trial court merely focuses on the fact

that a race-neutral reason was offered without making a finding, implicit or

otherwise, that the reasons were genuine, the third step cannot be fulfilled.

Tetreault v. State, 24 So. 3d 1242, 1244 (Fla. 1st DCA 2009) (finding that the trial

court’s acceptance of the reasons as gender-neutral was not sufficient to imply a

finding of genuineness) (citing Simmons v. State, 940 So. 2d 580, 582-83 (Fla. 1st

DCA 2006) (finding that because the trial court focused on the fact the State

                                         4
offered a seemingly race-neutral reason and accepted that the State’s reason for the

strike as helpful for the defense, the trial court bypassed the genuineness inquiry)).

      Here, the record provides no indication that the trial court engaged in a

genuineness inquiry. The trial court stated that the reason was neutral, asked for

defense counsel’s response, and then overruled the objection. There is no language

in the record that reflects the trial court’s consideration of genuineness or pretext.

As such, it appears the trial court failed to implicitly or explicitly make a finding

regarding the genuineness of the State’s reason.

      Because we are unable to determine that the trial court satisfied step three,

we are required to REVERSE and REMAND for a new trial. See Simmons, 940

So. 2d at 583.

WOLF and ROWE, JJ., and PARKER, GREGORY S., ASSOCIATE JUDGE,
CONCUR.




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