author: PARIENTE, J. POLSTON, J.,

text:
    James William HAYES, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-2104.
    Supreme Court of Florida.
    April 5, 2012.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Assistant Attorney General, Tallahassee, FL, for Respondent.
   PARIENTE, J.

Peremptory challenges during jury selection are once again the subject of this Court’s review. More specifically, we address the misapplication by both the trial court and the First District Court of Appeal in Hayes v. State, 45 So.3d 99 (Fla. 1st DCA 2010), of the procedure this Court set forth in Melbourne v. State, 679 So.2d 759 (Fla.1996), for eliminating discrimination during the exercise of peremptory challenges. In this case, the trial court erred in denying defense counsel’s peremptory challenge to a female juror, notwithstanding the undisputed gender-neutral reason counsel proffered (her relationship to law enforcement officers). The trial court mistakenly assessed defense counsel’s reason as if it were assessing a challenge for cause and failed to perform the critical third step of the Melbourne procedure, which requires an assessment of the genuineness of counsel’s proffered reasons for the strike. Further, the trial court erroneously relieved the State — the opponent of the strike — of its burden to establish that the reason for the challenge, despite being gender-neutral, was pretex-tual.

Perpetuating these errors, the First District incorrectly deferred to the trial court’s nonexistent genuineness inquiry on appeal and then improperly placed the burden of persuasion on the proponent of the challenge, the defendant in this case, to establish that his strike was being exercised in a nondiscriminatory manner. While deference to a trial judge’s findings of genuineness is necessary, deference to a trial judge’s ruling that lacks any record support is an invitation to produce arbitrary results. As the State’s concession of error before the First District recognized, the proper remedy for the trial court’s denial of the defendant’s peremptory challenge in this case was to reverse and remand for a new trial.

Because the First District’s decision in Hayes affirming the denial of the defendant’s peremptory challenge is contrary to and results in a misapplication of Melbourne’s well-established precedent, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; see also Jaimes v. State, 51 So.3d 445, 446 (Fla.2010) (identifying misapplication of decisions as a basis for express and direct conflict under article V, section 3(b)(3) of the Florida Constitution); Wallace v. Dean, 3 So.3d 1035, 1040 (Fla.2009) (same). For the reasons more fully explained below, we quash the decision of the First District.

FACTS AND PROCEDURAL HISTORY

Hayes was tried on three counts of armed robbery and three counts of false imprisonment with a weapon or firearm. While questioning prospective jurors during jury selection, the prosecutor asked the venire about whether any of the jurors had close friends or family who worked in law enforcement. Juror Robin Haupt, a female, responded that she had two out-of-state family members who worked in law enforcement, but agreed that those relationships would not cause her any “undue bias[ ].” Two other women, a juror and the alternate juror, also answered that they had family members who worked in law enforcement, but like juror Haupt, each acknowledged that it would not cause them to be biased or afford any special credibility to law enforcement officers.

At the conclusion of voir dire, defense counsel exercised two peremptory challenges without objection. The court then recited the names of the six jurors and the one alternate juror selected, of which five were women and two were men. Thereafter, the State and the defense each exercised a backstrike of an additional juror, eliminating one man and one woman from the jury.

Defense counsel then moved to peremptorily backstrike juror Haupt. The prosecutor objected, and the following exchange ensued:

[PROSECUTOR]: Your Honor, is it out of line if the State requests a gender neutral reason?
[DEFENSE COUNSEL]: A what?
[PROSECUTOR]: A gender neutral reason for using a strike against this female.
THE COURT: Counsel?
[DEFENSE COUNSEL]: I don’t have a gender neutral reason. She has some relatives or whatnot in law enforcement. She really didn’t answer many questions, at all. She didn’t say much of anything. To me, she’s somewhat of an unknown quantity.
THE COURT: Counsel, anything else?
[DEFENSE COUNSEL]: Nothing.
[PROSECUTOR]: Your Honor, she did indicate that she knew law enforcement officers, but she indicated affirmatively that that would have no bearing on her potential as a juror.
THE COURT: All right. Counsel, while you’ve identified, we talked about — and I’m not sure that it applies asdo a gender neutral reason to strike a potential juror in this manner. She did indicate she knew two law enforcement officers, but it created no problem for her. Otherwise, she had no other comments relating to this case. ...
THE COURT: All right. Any others?
[DEFENSE COUNSEL]: Your Honor, not to be difficult, but to go back to the gender neutral reason. If we strike that juror, the next juror in line was a woman, anyway. So it wouldn’t change the gender makeup of the jury.
THE COURT: I’m aware of that, but each juror has the right to serve at then-own right.
[DEFENSE COUNSEL]: What?
THE COURT: I’m aware of that, but each juror has the right to serve, at their own right, absent a sufficient basis to exclude them.

(Emphasis added.) Without conducting any inquiry as to the genuineness of defense counsel’s explanation, and without any attempt by the State to demonstrate that the reason given was not gender-neutral or was pretextual, the trial court denied defense counsel’s motion to use a peremptory challenge to strike juror Haupt.

The next day, before the jury was sworn in, defense counsel again raised the issue of the trial court’s denial of his attempt to peremptorily backstrike juror Haupt. At that time, defense counsel provided the trial court with another opportunity to revisit the decision to disallow the peremptory challenge and pointed out his recollection that the next ten jurors after juror Haupt were all female:

[DEFENSE COUNSEL]: ... I’m going to renew my objection about the Court’s denial of my attempt to strike the juror during jury selection after the State asked for a gender neutral reason. Do you want to go ahead and address that?
THE COURT: Your issue is preserved — well, I should say — let me rephrase that. Your issue was raised during the jury selection process, so.
[DEFENSE COUNSEL]: Right. I actually wanted to revisit that process because I don’t believe that we followed the right procedure in that situation.
THE COURT: All right.
[DEFENSE COUNSEL]: There is a case called State versus Melbourne [Melbourne v. State ], 679 So.2d 759. It lays out a three-step procedure for dealing with that situation. I don’t think we quite followed it so I just wanted to clarify it. Step one — step one of the procedure is that we — that the State make a timely objection, which he did, so we go to the second step. The second step is that I have to present a facially gender neutral reason for the strike. The case law says that a reason is gender neutral on its face if the reason does not involve gender, and then the Court has to rule on whether or not my reason was gender neutral in the face. I don’t recall the Court did that or not.
THE COURT: I concluded that your reason was not genuine under the circumstances, which presumes that it was gender — or excuse me, a gender neutral reason — explanation. Now that does not address your client’s issue about wanting other people, but on the basis that was stated as the general ground, that’s presumed in that — going to the next step.
[DEFENSE COUNSEL]: Okay, and step three was as you stated. If the Court finds the reason is gender neutral, then the Court has to decide if it was pretext or genuine based on all the circumstances. And I just want to reiterate that that — I think my reason was gender neutral because the juror that I had stricken before that was a female, the one that was going to come under the jury act [sic] after my strike would have been a female, and I think the next ten jurors were all females. So I don’t see how that could, with all due respect, possibly have been non gender neutral, or how could it then be [pretextual] on the basis of gender?
THE COURT: Do you have anything else?
[PROSECUTOR]: Your Honor, the State would only put forward that all of these arguments were made at the bench at jury selection and the Court did make a ruling at that time.
THE COURT: Not all of them, but I’ve made my observations and rulings. They stand. Thank you.

(Emphasis added.) Once again, the prosecutor did not offer anything in response to indicate that defense counsel’s peremptory challenge was pretextual. The jury, as empanelled, was ultimately composed of six jurors — five women and one man — with one female alternate.

On appeal, Hayes argued that the trial court erred in denying his peremptory challenge of juror Haupt, warranting a new trial. He specifically asserted that the trial court’s basis for denying the strike was inapplicable to peremptory challenges because it related to a challenge for cause and that the record did not support the court’s finding that defense counsel’s gender-neutral reason was pretextual under step three of the three-part procedure this Court set forth in Melbourne. The State conceded error, agreeing with Hayes that the trial court engaged in the wrong inquiry and urging the First District to remand for a new trial. The State candidly acknowledged in its brief that

[i]n the case at bar, it is clear that the trial court mistakenly considered the challenge as if it were a challenge for cause not a peremptory challenge. Because knowing people in law enforcement is a gender neutral reason and there is nothing in the record to support a finding that the reason was not genuine, this case must be remanded for a new trial.

(Emphasis added.)

Without referencing either Hayes’s contention or the State’s concession that the trial court mistakenly considered the challenge as if it were one for cause, the First District affirmed the trial court’s decision to disallow defense counsel’s strike of juror Haupt. Hayes, 45 So.3d at 104. In doing so, the district court initially noted that the trial court complied with the first two steps of the Melbourne procedure because the prosecutor requested a gender-neutral reason for the peremptory strike of juror Haupt (step one), and defense counsel offered a facially gender-neutral explanation after the trial court requested that he do so (step two). Id. at 103 (citing Rojas v. State, 790 So.2d 1219, 1221 (Fla. 3d DCA 2001), for the proposition that a prospective juror’s relationship to a law enforcement officer is a gender-neutral reason for exercising a peremptory strike).

In turning to step three — the trial court’s assessment of the genuineness of the reason given for the strike — the First District rejected the State’s concession of error and affirmed the trial court’s decision to disallow defense counsel’s challenge since, in the district court’s view, it was not clearly erroneous under the Melbourne standard of review. Id. at 103-04. The district court recognized that under Melbourne, a determination of genuineness turns primarily on credibility and takes into account “all the circumstances surrounding the strike.” Id. at 103 (quoting Melbourne, 679 So.2d at 764). The First District faulted Hayes for failing to demonstrate a lack of discriminatory intent, ostensibly deferring to the trial court’s credibility determinations, and reasoned as follows:

We cannot definitively say the trial court’s ruling is clearly erroneous and wholly unsupported by the record. The transcript of voir dire reveals nothing about the jurors the defense successfully removed by peremptory challenge prior to the attempted strike of juror Haupt. Thus Mr. Hayes cannot demonstrate, for example, the prior strikes included few or no women. But the transcript does show defense counsel’s initial response to the request for a gender-neutral justification for removing juror Haupt was “I don’t have a gender-neutral reason.” And although counsel recovered with “She has some relatives or whatnot in law enforcement,” two other individuals with family in law enforcement remained on the jury. These circumstances, together with the court’s assessment of defense counsel’s credibility (which we are not in a position to second guess) tend to support the denial of the peremptory challenge.

Id. at 104. The district court affirmed Hayes’s convictions. Id.

Judge Kahn dissented, finding the State’s concession of error in this case to be “both highly professional and highly perceptive.” Id. (Kahn, J., dissenting). In Judge Kahn’s view, the majority’s deference to the trial court’s disallowance of the challenge was an invitation to produce arbitrary results, especially in a case where a prospective juror’s relationship with law enforcement- officers was the proffered reason for exercising a peremptory strike. See id. From his review of the record, Judge Kahn believed that defense counsel’s initial statement that he did not have a gender-neutral reason “more or less came out because defense counsel was completely surprised by the prosecution’s objection, and, most likely, had never even considered in his own mind that he was focusing on the gender of the prospective witness, rather than upon her relationship with the law enforcement officers.” Id.

Hayes petitioned this Court to review the First District’s decision, arguing that the district court misapplied the principles this Court enunciated in Melbourne and its progeny, and we accepted jurisdiction.

ANALYSIS

Hayes’s position centers on the trial court’s denial of his peremptory strike on the basis of pretext, focusing on the third step of the simplified three-step procedure this Court articulated in Melbourne v. State, 679 So.2d 759 (Fla.1996) — the trial court’s genuineness inquiry. Hayes argues that the First District applied the clearly erroneous standard of review arbitrarily and ignored what the record actually reflected in order to affirm the trial court. The State, on the other hand, contends that the district court adequately analyzed the evidence that was available in the record and gave proper weight to the trial court’s findings due to the trial court’s superior vantage point. To resolve this issue, we review our precedent regarding peremptory challenges, discuss the applicable standard of review, and then apply our precedent to the facts of this case. For the reasons discussed below, we conclude that both the trial court and the First District misapplied Melbourne’s well-established precedent.

Peremptory Challenges and the Right to a Fair and Impartial Jury

A practice of ancient origin, the peremptory challenge is “part of our common law heritage” and has “very old credentials.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 147, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (O’Connor, J., concurring) (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 639, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (O’Connor, J., dissenting)); see also Busby v. State, 894 So.2d 88, 97 (Fla.2004) (quoting Swain v. Alab0ama, 380 U.S. 202, 212, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). While there is no freestanding constitutional right to exercise peremptory challenges at either the state or federal level, this Court has long recognized that “such challenges are ‘nonetheless one of the most important of the rights secured to the accused.’ ” Smith v. State, 59 So.3d 1107, 1111 (Fla.2011) (quoting Busby, 894 So.2d at 98). The central function of peremptory challenges is to “enabl[e] each side to exclude those jurors it believes will be most partial toward the other side.” Holland v. Illinois, 493 U.S. 474, 484, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990) (citing Batson, 476 U.S. at 91, 106 S.Ct. 1712). Recognizing the interplay between voir dire and peremptory challenges in American trials, the United States Supreme Court has noted that jury selection “operates] as a predicate for the exercise of peremptories,” the persistence and extensive use of which “demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury.” Swain, 380 U.S. at 219, 85 S.Ct. 824.

Indeed, peremptory challenges, as well as challenges for cause, are the primary tools by which parties remove unfavorable jurors from the jury panel. Peremptory and for-cause challenges constitute “distinct, but complementary, methods to aid those facing criminal charges in achieving the constitutional right of trial by an impartial jury.” Busby, 894 So.2d at 99; see also Swain, 380 U.S. at 219-20, 85 S.Ct. 824 (“[T]he very availability of perempto-ries allows counsel to ascertain the possibility of bias through probing questions on the voir dire and facilitates the exercise of challenges for cause by removing the fear of incurring a juror’s hostility through examination and challenge for cause.”). While the two types of challenges work in tandem to permit the removal of a potential juror in whom the striking party perceives a certain bias or hostility, peremptory challenges differ considerably from challenges for cause.

Challenges for cause, while unlimited in number, allow the removal of panel members only on certain enumerated grounds, including a potential juror’s lack of impartiality. Busby, 894 So.2d at 99. The necessity of excusing a juror for cause arises where “any reasonable doubt exists as to whether the juror possesses an impartial state of mind.” Id. at 95. Peremptory challenges, in contrast, are limited in number and have traditionally been exercised according to a party’s unfettered discretion. Id. at 99 (recognizing that peremptory challenges “can be used to excuse a juror for any reason”). Given .the considerable freedom parties possess when utilizing peremptory challenges, it is clear that a party’s reasons for exercising a peremptory challenge “need not rise to the level justifying a challenge for cause,” State v. Slappy, 522 So.2d 18, 22 (Fla.1988), receded from on other grounds by Melbourne, 679 So.2d at 765, and “can be used when defense counsel cannot surmount the standard for a cause challenge,” Busby, 894 So.2d at 100.

Affording 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. Smith, 59 So.3d at 1111; see also Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (holding that the U.S. Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges); San Martin v. State, 705 So.2d 1337, 1343 (Fla.1997) (“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.’ ”). As this Court explained in State v. Neil, 457 So.2d 481 (Fla.1984), receded from on other grounds by State v. Johans, 613 So.2d 1319,1321 (Fla.1993):

The primary purpose of peremptory challenges is to aid and assist in the selection of an impartial jury. It was not intended that such challenges be used solely as a scalpel to excise a distinct racial group from a representative cross-section of society. It was not intended that such challenges be used to encroach upon the constitutional guarantee of an impartial jury.

Id. at 486 (emphasis added).

Thus, to strike the appropriate balance between a party’s right to exercise peremptory challenges and the attempt to eliminate invidious discrimination in juror selection, this Court in Melbourne enunciated a three-step procedure to be followed when a party objects to the exercise of a peremptory challenge on the ground that it was made on a discriminatory basis. First, the objecting party must make a timely objection, show that the venireper-son is a member of a distinct protected group, and request that the trial court ask the striking party to provide a reason for the strike. Melbourne, 679 So.2d at 764. Second, if these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike, and the burden shifts to the proponent to come forward with a race-, ethnicity-, or gender-neutral explanation. Id. Third, if the explanation is facially race-, ethnicity-, or gender-neutral, the court must determine whether the explanation is a pretext “given all the circumstances surrounding the strike,” with the focus of this inquiry being the genuineness of the explanation. Id.

When enforcing the above guidelines, courts begin with the premise that peremptory challenges are presumed to be exercised in a nondiscriminatory manner. Id. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful discrimination. Id.

The law governing this process is well-defined. As we have previously explained: “Melbourne establishes a simple, precise, and easy-to-administer procedure for challenging a litigant’s suspected use of a peremptory challenge to discriminate based on race or other impermissible factors .... The ‘simplified inquiry’ adopted by this Court recognizes that little is required to request, and evaluate, a neutral explanation_” Welch, 992 So.2d at 213 (quoting State v. Whitby, 975 So.2d 1124, 1130 (Fla.2008) (Pariente, J., concurring)). Compliance with each step is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial. See Welch, 992 So.2d at 211-13 (reversing for new trial where, following the opponent’s step-one objection, the trial court focused on the grounds for the opponent’s objection instead of following the Melbourne procedure, which requires the trial court to request the proponent’s reason for the strike); see also Johans, 613 So.2d at 1322 (“[W]e hold that the proper remedy in all cases where the trial court errs in failing to hold a [peremptory challenge] inquiry [on the basis of alleged discrimination] is to reverse and remand for a new trial.”).

In this case, the parties do not contest that there was full compliance with steps one and two of the Melbourne procedure. Rather, the parties take issue with the third step, which we examine in turn.

The Third-Step Genuineness Inquiry

As stated above, in applying the third step, the trial court must satisfy itself that the explanation is not a pretext. Melbourne, 679 So.2d at 764. It has been observed that “[t]he genuineness of the explanation is the yardstick with which the trial court will determine whether or not the proffered reason is pretextual.” Davis v. State, 691 So.2d 1180, 1183 (Fla. 3d DCA 1997). Melbourne teaches that to assess genuineness, the trial court must consider all relevant circumstances surrounding the strike in determining whether the proffered reason for the strike is genuine. Melbourne, 679 So.2d at 764 n. 8. This Court explained in Murray v. State, 3 So.3d 1108 (Fla.2009), that

[i]n determining whether or not a proffered race-neutral reason for a peremptory strike is a pretext, the court should focus on the genuineness of the race-neutral explanation as opposed to its reasonableness.
In making a genuineness determination, the court may consider all relevant circumstances surrounding the strike. “Relevant circumstances may include— but are not limited to — the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” [Melbourne, 679 So.2d at 764 n. 8] (citing State v. Slappy, 522 So.2d 18 (Fla.1988)); see also Booker v. State, 773 So.2d 1079, 1088 (Fla.2000) (“[W]e provided a nonexclusive list of factors a trial court may consider in determining whether the reason given for exercising a peremptory challenge is genuine....” (citing Melbourne, 679 So.2d at 764 n. 8)).

Murray, 3 So.3d at 1120 (citations omitted).

The proper test under Melbourne requires the trial court’s decision on the ultimate issue of pretext to turn on a judicial assessment of the credibility of the proffered reasons and the attorney or party proffering them, both of which “must be weighed in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record.” Slappy, 522 So.2d at 22; see also Melbourne, 679 So.2d at 764; Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999) (“[Identifying the true nature of an attorney’s motive behind a peremptory strike turns primarily on an assessment of the attorney’s credibility.”). We have consistently held that the trial court’s assessment will be affirmed on appeal unless clearly erroneous. Melbourne, 679 So.2d at 764-65; see also Rodriguez v. State, 753 So.2d 29, 41 (Fla.2000) (noting that because the validity of a peremptory strike rests on the trial court’s assessment of credibility, an appellate court should affirm unless the determination is clearly erroneous).

Despite the need of appellate courts to defer to a trial court’s credibility assessment, this Court has recognized that the clearly erroneous standard is not a mechanism through which appellate courts can simply rubber-stamp the trial court’s ruling. For instance, in Nowell v. State, 998 So.2d 597 (Fla.2008), when reversing a trial court’s finding of genuineness because it was unsupported by the record, we explained that although “the trial court is in the best position to assess the genuineness of the reason advanced, and the decision ■will be affirmed unless clearly erroneous ... ‘deference does not imply abandonment or abdication of judicial review,’ ... because ‘[difference does not by definition preclude relief.’ ” Id. at 602 (quoting Dorsey v. State, 868 So.2d 1192, 1200 (Fla.2003); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

We acknowledge that the Melbourne procedure does not require the trial court to recite a perfect script or incant specific words in order to properly comply with its analysis under step three. Indeed, there “is no requirement that the trial court specifically use the word ‘genuine.’ ” Hoskins v. State, 965 So.2d 1, 12 (Fla.2007); see id. (holding that the trial court applied correct standard in step three analysis even though trial court used the term “real” as this term was synonymous with word “genuine”). Nevertheless, “Melbourne does not relieve a trial court from weighing the genuineness of a reason just as it would any other disputed fact.” Dorsey, 868 So.2d at 1202.

After the trial court determines that the proponent has proffered a race-, ethnicity-, or gender-neutral reason and then proceeds to evaluate that reason’s genuineness, the trial court can easily inquire of the opponent of the strike, who at that point bears the burden of persuasion, to demonstrate why the reason was not genuine. But where the opponent of the strike fails to provide the trial court with an explanation as to why the reasons given were pretextual, and the trial court thereafter fails to undertake an on-the-record genuineness inquiry, the reviewing court is unable to engage in meaningful appellate review. See id. at 1200 (emphasizing that a trial court record is necessary for “meaningful appellate review”). This is because “the appellate court is not a forum for conducting an after-the-fact ... inquiry,” and where “no inquiry is conducted, ‘[d]ef-erence cannot be shown to a conclusion that was never made.’ ” Hall v. Daee, 602 So.2d 512, 515-16 (Fla.1992) (quoting Reynolds v. State, 576 So.2d 1300, 1302 (Fla.1991)).

An appellate court’s inability to review a trial court’s genuineness inquiry is of particularly great concern when the trial court prohibits a party from striking a juror despite the absence of evidence of discriminatory intent. A trial court’s refusal to permit a peremptory challenge is tantamount to a finding that the strike was being exercised for a discriminatory purpose. Yet, in Melbourne, this Court emphasized the presumption that peremptory challenges are exercised in a nondiserimi-natory manner and that the burden of persuasion is on the opponent of the strike to establish support for purposeful discrimination.

Therefore, where the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. This same reasoning applies to instances where the record affirmatively indicates that the trial court engaged in the wrong legal analysis. Deferring to the trial court’s genuineness determination on appeal when no such determination has been made invites an arbitrary result.

Interpreting our jurisprudence on this issue, Florida’s appellate courts have fairly consistently reversed for a new trial where the record provides no indication that the trial court engaged in the required genuineness inquiry. Conversely, where the record supports the conclusion that the trial court has actually considered relevant circumstances surrounding the strike, it is proper for the reviewing court to conclude that a finding has been made, notwithstanding that the trial court did not recite a perfect script or incant “magic” words. See Sutton v. State, 976 So.2d 643, 644 (Fla. 2d DCA 2008) (holding that the trial court applied the correct law during step three because “[wjhen the trial court’s ruling [was] read in its entirety, it [was] apparent that the trial judge understood that he was making the ruling required for step three and that he was actually ruling that the facially race-neutral explanation was not genuine”); Watson, 841 So.2d at 661 (rejecting the defendant’s argument that the trial court failed to conduct a genuineness inquiry where the record showed that immediately after striking the potential juror, the court noted there was another African American on the venire, indicating that the court was considering the makeup of the panel).

Misapplication of Melbourne

In the present case, we conclude that the trial court’s misapplication of Melbourne is twofold. First, when evaluating defense counsel’s strike, the trial court employed a for-cause analysis rather than undertaking a peremptory-challenge analysis. Then, the trial court failed to adequately engage in the genuineness inquiry mandated by the third step of the Melbourne procedure. On appeal, the First District perpetuated the trial court’s errors by first deferring to the court’s nonexistent genuineness inquiry under the clearly erroneous standard of review and then by improperly placing the burden on Hayes, the proponent of the strike, of disproving purposeful discrimination given the lack of record support.

The record shows that step one of the Melbourne procedure was satisfied because the State requested that the trial court inquire of defense counsel as to a gender-neutral reason for striking juror Haupt. Subsequently, the trial court satisfied step two when it asked defense counsel to explain his reason for the strike. The reason proffered by defense counsel was that juror Haupt had relatives in law enforcement. Courts have universally considered a prospective juror’s familial relationship with someone in law enforcement to be a valid and facially neutral reason for the exercise of a peremptory challenge. See, e.g., Simmons, 940 So.2d at 583 (recognizing that a juror’s spouse being a law enforcement officer was race-neutral on its face); Russell v. State, 879 So.2d 1261, 1263 (Fla. 3d DCA 2004) (stating that a potential juror having a relative in law enforcement “has been repeatedly found to be a valid, race neutral or gender neutral reason for a peremptory strike”); Chambers v. State, 682 So.2d 615, 615 (Fla. 4th DCA 1996) (“[T]he law enforcement background of a juror’s spouse is a properly neutral reason for a peremptory challenge-”); Czaja v. State, 674 So.2d 176, 177 (Fla. 2d DCA 1996) (“A close relationship between the juror and a law enforcement officer is a race-neutral reason for exercising a peremptory strike.”).

Since the reason defense counsel offered was facially gender neutral, the trial court was then required to engage in step three — the genuineness analysis. At this juncture, the prosecutor argued that juror Haupt “did indicate that she knew law enforcement officers, but [also] indicated affirmatively that [it] would have no bearing on her potential as a juror.” The trial court disallowed the strike and made the following statement:

THE COURT: Counsel, while you’ve identified, we talked about — and I’m not sure that it applies as to a gender neutral reason to strike a potential juror in this manner. She did indicate she knew two law enforcement officers, but it created no problem for her. Otherwise, she had no other comments relating to this case.

The next day, when defense counsel apprised the trial court of its inadequate Melbourne analysis, the trial court simply noted that it had concluded the day before that defense counsel’s “reason was not genuine under the circumstances.” Neither the State nor the trial court set forth any other observations.

Based on this exchange, we conclude that both Hayes and the State, which conceded error below, were correct in the First District. By focusing merely on whether juror Haupt’s relationship with two law enforcement officers “created no problem for her” (i.e., whether she could be fair), the trial court mistakenly considered defense counsel’s challenge as one for cause, thereby imposing a higher burden upon defense counsel. Since the record is completely devoid of any indication that the trial court complied with its obligation to properly consider the issue of genuineness, the First District, which was confined to the record before it, improperly assumed that a genuineness inquiry was in fact conducted by deferring to the trial court, which had utilized the wrong standard.

Given that no genuineness inquiry was ever conducted, the First District speculated as to the reasons the trial court disallowed the strike and essentially treated the situation as if it were the defendant who was challenging the State’s strike. The district. court reasoned that Hayes failed to demonstrate that the peremptory strikes defense counsel raised before the attempted strike of juror Haupt included few or no women given that the record was silent on this point. See Hayes, 45 So.3d at 104. In doing so, the district court did not consider the proper effect of the lack of record support for the trial court’s ruling and improperly placed the burden of persuasion on Hayes — the proponent of the strike — to disprove a finding of purposeful discrimination. However, since it was the State’s burden in this scenario, as the opponent of the strike, to overcome the presumption of nondiscrimination and to prove discriminatory intent, the State was the party responsible for establishing record support for that position at the trial level. Cf Dorsey, 868 So.2d at 1202-03 (reasoning that because the proponent of the strike has the burden to set forth a facially neutral reason under step two of the Melbourne procedure, the State as the proponent never satisfied its burden of production by proffering a race-neutral reason that was either observed by the trial court or otherwise supported by the record).

By requiring Hayes to disprove the State’s assertion of discriminatory intent in the absence of record support, the First District disregarded the presumption of nondiscrimination, relieved the State of its burden of proof, and erroneously faulted Hayes for the State’s inability to meet its burden. This allocation of burdens is directly contrary to Melbourne.

No Evidence of Purposeful Discrimination

In holding that there was evidence to support the conclusion that defense counsel’s motive in exercising the strike was discriminatory, the First District set forth the following reasoning:

[T]he transcript does show defense counsel’s initial response to the request for a gender-neutral justification for removing juror Haupt was “I don’t have a gender-neutral reason.” And although counsel recovered with “She has some relatives or whatnot in law enforcement,” two other individuals with family in law enforcement remained on the jury.

Hayes, 45 So.Sd at 104. Having reviewed the record, we conclude this reásoning was in error.

While not dispositive of the issue, we initially note that the record before us affirmatively indicates that Hayes’s six-person jury was composed of five women, and the alternate juror was also a woman. Defense counsel also pointed out his unre-butted recollection that the next ten prospective jurors in the venire after juror Haupt were women as well. See Knight v. State, 919 So.2d 628, 633 (Fla. 3d DCA 2006) (affirming the trial court’s decision to allow State to exercise peremptory strike against a female juror given that the record indicated four females were picked as jurors and two females were picked as alternates, thereby supporting the trial court’s decision that a peremptory challenge was not pretextual).

The State conceded in the court below that there was “nothing in the record to support a finding that [defense counsel’s] reason was not genuine.” The First District did not accept the State’s concession, relying in part upon defense counsel’s initial response for removing juror Haupt: “I don’t have a gender neutral reason.” After this statement, defense counsel immediately gave a gender-neutral reason, which the State did not contest. Instead, the State suggested that juror Haupt had indicated that she could be fair — a justification relevant to a for— cause analysis. Regardless of whether defense counsel’s statement was inadvertent or was actually meant to convey that juror Haupt’s relationship with law enforcement officers was a neutral reason, just not specifically gender neutral, it is unquestionable that case law supports the conclusion that such a relationship presents a valid and neutral basis for exercising a peremptory challenge.

The First District also reasoned that two other individuals with family members in law enforcement remained on the jury. Certainly, disparate treatment of similarly situated jurors can give rise to a finding of pretext. See Melbourne, 679 So.2d at 764 n. 8. However, the State did not raise this to the trial court. Had the State done so, the trial judge would have been able to pursue this inquiry and demand a response from the defense relating to the suggestion of pretext. Furthermore, the trial court gave no indication that this served as a basis for denying the strike.

Based on the record before us, there is absolutely no evidence to support a conclusion that defense counsel was motivated by anything even tenuously related to invidious discrimination.

CONCLUSION

It is critical that in cases dealing with a party’s challenge to jurors during the jury-selection process, we bear in mind that the reason for the Melbourne inquiry is to prevent discrimination against distinct groups of individuals through the use of peremptory challenges. If the Melbourne procedure is not followed, there is a danger that the purpose for which the procedure was established — to prevent discrimination — will erode. Therefore, those involved at every level — the parties, the trial court, and the appellate court— should be vigilant to remember all three steps in the Melbourne procedure. We emphasize that under the final step, the step at issue in this case, if the proponent’s reason for the challenge is race-, ethnicity-, or gender-neutral, then the trial court should inquire of the opponent of the strike. At this point, the opponent of the strike bears the burden of persuasion to establish that the reason is a pretext for discrimination, and the trial court has the responsibility to determine the issue of genuineness based on the record before it. The trial court should request that the opponent advise why the reason is not genuine, and how, given all the circumstances, the explanation is a pretext.

Where there is no evidence that a peremptory challenge is being exercised in a discriminatory manner to exclude a person on the basis of her gender, the very purpose for the Melbourne procedure is undermined if the strike is denied. Here, although the defendant sought to strike a juror who had ties to law enforcement, that juror remained on the jury panel. Thus, the defendant’s right to exercise a peremptory challenge was denied absent a concomitant benefit of preventing discrimination in jury selection. Because it misapplied and frustrated the original purpose of Melbourne, we quash the decision of the First District Court of Appeal in Hayes.

It is so ordered.

QUINCE, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

POLSTON, J., concurs in result only with an opinion.

CANADY, C.J., dissents.

POLSTON, J.,

concurring in result only.

The State properly conceded error before the First District. The initial statement by defense counsel that “I don’t have a gender neutral reason,” relied on by the majority opinion below, was cured by defense counsel raising the issue again the next day and objecting to the process. See Carratelli v. State, 961 So.2d 312, 319 (Fla.2007) (“[R]enewing an objection ... gives the trial court one last chance to correct a potential error and avoid a possible reversal on appeal. It also allows counsel to reconsider the prior objection.... ”). In that subsequent proceeding, defense counsel argued again the gender neutral reasons why the peremptory strike should be permitted, thereby clarifying any possible confusion created by the initial statement.

      . 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.” 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).

      . As a result of these backstrikes, two prospective jurors were removed from the panel — a man and woman. During his colloquy with the trial court the following day, defense counsel stated that the prospective juror he struck prior to striking juror Haupt was a woman.

      .From a common-sense review of this exchange, it would appear that at this point in the dialogue, the court reporter actually misnamed the party speaking and incorrectly listed the speaker as the prosecutor. It would be illogical for the prosecutor to use the pronoun "we” and then defend the basis for defense counsel's attempted strike.

      . Hayes also argued that the trial court erred in allowing the State to introduce inadmissible hearsay. The district court affirmed the trial court’s ruling on this issue without elaboration, and Hayes does not raise that issue in this Court.

      . Melbourne involved race-based discrimination during jury selection. These same guidelines apply to claims of gender-based discrimination. See Welch v. State, 992 So.2d 206, 210-13 (Fla.2008).

      . Case law illustrates that where the defendant argues on appeal that a trial court erred with respect to a party’s peremptory strike on the question of genuineness, the appellate court is generally confronted with two Melbourne scenarios. The first arises when the defendant objects to the State's exercise of a peremptory strike, but the trial court allows the strike. See, e.g., Alonzo v. State, 46 So.3d 1081 (Fla. 3d DCA 2010), review denied, 70 So.3d 586 (Fla.2011); Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009); Watson v. State, 841 So.2d 659 (Fla. 4th DCA 2003); Shuler v. State, 816 So.2d 257 (Fla. 2d DCA 2002). In this situation, the defendant, as the opponent of the strike, carries the burden of persuasion to demonstrate purposeful discrimination and must overcome the presumption that the State's strike was exercised in a nondiscriminatory manner. Under the second, the State objects to the defendant's exercise of a peremptory strike, but the trial court disallows the strike and permits the juror to sit as a member of the jury. See, e.g., Lidiano v. State, 967 So.2d 972 (Fla. 3d DCA 2007); Sharp v. State, 789 So.2d 1211 (Fla. 5th DCA 2001). In this situation, the State, as the opponent of the strike, carries the burden of persuasion to prove purposeful discrimination and must demonstrate that it has overcome the presumption that the defendant's strike was exercised in a nondiscriminatory manner. The case under review involves the latter of these two issues.

      . See, e.g., Siegel v. State, 68 So.3d 281, 287 (Fla. 4th DCA 2011) (reversing for new trial where the record was devoid of any indication that the trial court actually engaged in requisite genuineness analysis of the defendant's reason for peremptory strikes since there was no proof of consideration of any circumstances relevant to this inquiry); Te-treault, 24 So.3d at 1243-44 (reversing where the trial court did not make express rulings explaining why it found the State's reasons for striking prospective jurors were genuine, indicating that the court bypassed the third step in the Melbourne analysis and focused solely on the State's reasons as being gender-neutral); Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006) (reversing on same grounds as in Tetreault and distinguishing from prior cases where appellate courts affirmed, given that record did not disclose that the trial court ever reached step three); Agro Distrib., LLC v. Rowe, 876 So.2d 709, 710-11 (Fla. 4th DCA 2004) (holding that the trial court reversibly erred by disallowing the defense’s strike when the determination was based solely on the credibility of the prospective juror, who had indicated that "she could be perfectly fair”); Jones v. State, 787 So.2d 154, 157 (Fla. 4th DCA 2001) ("[Wjhere a gender or race neutral reason was advanced for the strike, the reason advanced is itself reasonable, and the record is devoid of any indication that the trial judge considered the relevant circumstances surrounding the strike in concluding that it was motivated by improper purposes, we must conclude that the trial judge failed to adequately engage in the 'genuineness inquiry’ mandated by Melbourne.”), review denied, 817 So.2d 850 (Fla.2002); Anderson v. State, 750 So.2d 741, 742-44 (Fla. 3d DCA 2000) (reversing for a new trial after agreeing with the State’s concession of error on appeal that the trial court did not properly adhere to the three-step analysis of Melbourne because although full compliance with steps one and two was shown, nothing in the record indicated that the court engaged in a step-three determination where court only made the comment that it had been four years since the juror’s last victimization).


source: Caselaw Access Project

author:
LABARGA, J.
      PARIENTE, J., CANADY, C.J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. John McMAHON, Respondent.
    No. SC10-2425.
    Supreme Court of Florida.
    April 5, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, Helene Catherine Hvizd and Jeanine M. Germanowicz, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in State v. McMahon, 47 So.3d 368 (Fla. 4th DCA 2010). The district court certified that its decision is in direct conflict with the decision of the Fifth District Court of Appeal in State v. Chaves-Mendez, 809 So.2d 910 (Fla. 5th DCA 2002), on a question of law. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The conflict issue concerns whether the State is authorized under section 924.07, Florida Statutes (2009), to appeal a sentence that is otherwise legal on the ground that the trial court improperly initiated a plea dialogue with a defendant without invitation of either party. For the reasons set forth herein, we approve the result reached by the Fourth District in McMahon, and we disapprove the decision of the Fifth District in Chaves-Mendez.

FACTS AND PROCEDURAL HISTORY

McMahon was charged with possession of cocaine, possession of drug paraphernalia, and grand theft. McMahon, 47 So.Sd at 369. A hearing was held at which McMahon’s counsel advised the court that he hoped to resolve the case at the hearing, and further advised the court that McMahon “scores 18 months at the bottom.” The court agreed that it would be a good idea to resolve the case and, after inquiring about prior convictions, informed McMahon that if he entered a plea at that time, the court would not “habitualize” him if he wanted a sentence of eighteen months. The State had previously filed a notice of intent to seek a habitual felony offender sentence, and objected on the ground that it was entitled to a habitual offender hearing. See id. McMahon was allowed to enter a guilty plea and was sentenced to eighteen months, which was the minimum sentence indicated on the Criminal Punishment Code sentencing scoresheet. See id.

The State subsequently appealed the sentence to the Fourth District Court of Appeal, contending that the trial court improperly initiated plea negotiations with McMahon and failed to conduct a hearing on McMahon’s habitual felony offender (HFO) status despite the State’s objection. See id. The district court dismissed the appeal, holding that the State cannot appeal the sentence imposed on McMahon even though the district court agreed that the trial court improperly initiated plea discussions with the defendant. McMahon, 47 So.3d at 369-70. The court noted that neither section 924.07, Florida Statutes (2009), which sets forth the specific circumstances under which the State may take an appeal in a criminal case, nor Florida Rule of Appellate Procedure 9.140(c) authorizes the State to appeal from a sentence on the ground that the trial court improperly initiated a plea dialogue. See 47 So.3d at 369. The district court reasoned that although those provisions authorize the State to appeal a sentence on the ground that it is illegal, the sentence imposed on McMahon was not appealable by the State because it fell within the sentencing guidelines and was therefore legal. Id.

With regard to the issue of improper court-initiated plea discussions, the Fourth District cited this Court’s decision in State v. Warner, 762 So.2d 507 (Fla.2000), in which we held that a “trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party.” McMahon, 47 So.3d at 369 (quoting Warner, 762 So.2d at 513). The district court held that despite the impropriety of what it concluded was a court-initiated plea negotiation with McMahon, the State was not authorized to appeal the sentence resulting from that plea negotiation. McMahon, 47 So.3d at 369. To support its conclusion, the Fourth District relied in part on its prior decision in State v. Figueroa, 728 So.2d 787 (Fla. 4th DCA 1999), which held that “a trial court’s initiation of plea discussions does not render an otherwise legal sentence ‘illegal’ for purposes of a state appeal” under section 924.07 or rule 9.140(c). McMahon, 47 So.3d at 369 (citing Figuer oa, 728 So.2d at 788). It is on this point that the district court certified conflict with the Fifth District’s decision in Chaves-Mendez, which held in a State appeal that a court-initiated plea negotiation with a defendant constituted per se reversible error. See id. (quoting Chaves-Men-dez, 809 So.2d at 910-11).

With regard to the State’s second claim, the Fourth District similarly concluded that because the eighteen-month sentence was legal, the trial court’s refusal to conduct a hearing on McMahon’s habitual felony offender status was also not an appeal-able issue under the statute authorizing State appeals in criminal cases. See McMahon, 47 So.3d at 370. Based on the foregoing, the district court dismissed the State’s appeal. See id. We turn next to the decision certified by the Fourth District to be in express and direct conflict.

Certified Conflict

The Fourth District certified conflict with State v. Chaves-Mendez, which held that a court-initiated plea negotiation with the defendant was per se reversible error. In Chaves-Mendez, the Fifth District set forth the facts in that case as follows.

The defendant was charged by two count information with committing the crimes of capital sexual battery on a person less than 12 years of age, and lewd and lascivious molestation. When the case was called for trial, the trial court sua sponte initiated plea negotiations with the defendant. This negotiation contemplated that, in exchange for the defendant’s agreement to enter a plea of nolo contendere to both charges, the trial court would impose a sentence of probation. Over the objection of the State and the victim’s family, the defendant accepted the trial court’s plea offer. Thereafter, the trial court entered judgment on the defendant’s plea and sentenced him accordingly.

Chaves-Mendez, 809 So.2d at 910 (footnote omitted). The State appealed the sentences in Chaves-Mendez to the Fifth District Court of Appeal, contending that the sentences were illegal because the trial court erred in initiating plea negotiations with the defendant. See id. The Fifth District agreed with the State, holding that “[t]he trial court’s initiation of plea negotiations with the defendant was per se reversible error.” Id. In reaching this holding, the district court relied on this Court’s decision in Warner, which was a state appeal from an invalid downward departure sentence. The Fifth District in Chaves-Mendez, noting that Warner held that the trial court must not initiate a plea dialogue with a defendant, reversed the sentences because the trial court impermissibly initiated plea negotiations with Chaves-Men-dez. See Chaves-Mendez, 809 So.2d at 910-11.

Although Chaves-Mendez can be distinguished from McMahon, in part, on the basis that the sentence in Chaves-Mendez was apparently an improper downward departure sentence, see Chaves-Mendez, 809 So.2d at 911 (Sawaya, J., concurring and concurring specially), that fact is not apparent in the majority opinion. The majority opinion in Chaves-Mendez conflicts with McMahon in that Chaves-Mendez allowed a State appeal on the claim that the trial court improperly initiated a plea dialogue whereas McMahon did not. Moreover, by holding such an error to be per se reversible, Chaves-Mendez misapplied our decision in Warner wherein we made clear that error by the trial court in improperly initiating a plea dialogue is subject to harmless error analysis. See Warner, 762 So.2d at 515 n. 14.

To resolve the conflict presented in this case — whether the State may appeal a sentence that is otherwise legal on the ground that the trial court improperly initiated a plea dialogue with a defendant — we begin by addressing the State’s right to appeal in a criminal case.

ANALYSIS

“The State’s right to appeal in a criminal case must be ‘expressly conferred by statute.’” Exposito v. State, 891 So.2d 525, 527 (Fla.2004) (quoting Ramos v. State, 505 So.2d 418, 421 (Fla.1987)). The State’s authority to appeal a criminal case is set forth in sections 924.07 and 924.071, Florida Statutes (2009). Section 924.07(1), Florida Statutes (2009), authorizes the State to appeal in a criminal case in the following circumstances:

(1) The state may appeal from:
(a) An order dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release.
(b) An order granting a new trial.
(e)An order arresting judgment.
(d) A ruling on a question of law when the defendant is convicted and appeals from the judgment. Once the state’s cross-appeal is instituted, the appellate court shall review and rule upon the question raised by the state regardless of the disposition of the defendant’s appeal.
(e) The sentence, on the ground that it is illegal.
(f) A judgment discharging a prisoner on habeas corpus.
(g) An order adjudicating a defendant insane under the Florida Rules of Criminal Procedure.
(h) All other pretrial orders, except that it may not take more than one appeal under this subsection in any case.
(i) A sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921.
(j) A ruling granting a motion for judgment of acquittal after a jury verdict.
(k) An order denying restitution under s. 755.089.
(l) An order or ruling suppressing evidence or evidence in limine at trial.
(m) An order withholding adjudication of guilt in violation of s. 775.08435.
(2) An appeal under this section must embody all assignments of error in each pretrial order that the state seeks to have reviewed. The state shall pay all costs of the appeal except for the defendant’s attorne/s fee.

§ 924.07, Fla. Stat. (2008) (emphasis added). These limitations on the State’s right to appeal in a criminal case are not new; the State’s right to appeal in criminal cases historically has been extremely limited. See, e.g., State v. Burns, 18 Fla. 185 (1881). Statutes such as section 924.07 “which afford the government the right to appeal in criminal cases should be construed narrowly.” Exposito, 891 So.2d at 528 (quoting State v. Jones, 488 So.2d 527, 528 (Fla.1986)). Further, the Court “must give the ‘statutory language its plain and ordinary meaning.’ ” Id. (quoting Seagrave v. State, 802 So.2d 281, 286 (Fla.2001)).

We are also mindful that in giving effect to the unambiguous text of a statute, courts may not extend, modify, or limit the statute’s express terms or its reasonable or obvious implications because “[t]o do so would be an abrogation of legislative power.” See Hill v. Davis, 70 So.3d 572, 575 (Fla.2011) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). Therefore, we are not at liberty to judicially modify the authorizing statute to extend to the State authority to appeal a sentence based on any grounds other than those specifically specified by the Legislature.

Florida Rule of Appellate Procedure 9.140(c), which serves as the procedural counterpart to section 924.07, Florida Statutes, lists the same types of orders that the State may appeal in a criminal case. See Fla. R.App. P. 9.140(c)(1). Subdivision (c)(l)(M) of the rule provides that the State may appeal an order “imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines.” Fla. R.App. P. 9.140(c)(l)(M). In this case, the conflict question concerns whether the sentence imposed on McMahon is illegal and thus appealable by the State, if in fact the trial court initiated plea negotiations with the defendant without invitation of any party. Thus, we next discuss our precedent concerning trial court-initiated plea negotiations.

In 1975, this Court addressed judicial involvement in plea negotiations in Davis v. State, 308 So.2d 27 (Fla.1975). We refrained in Davis from condemning all judicial participation in the plea bargaining process because of our confidence that trial judges would “take all necessary precautions to assure that the defendant’s rights are protected by appropriate safeguards.” Davis, 308 So.2d at 29. Some twenty-five years later, in State v. Warner, 762 So.2d 507 (Fla.2000), we considered whether a sentence is “per se invalid where the trial court, over the State’s objection, advises a defendant regarding what sentence would be imposed pursuant to a plea of guilty, and accepts the defendant’s subsequent guilty plea.” Id. at 509. We acknowledged various advantages of judicial participation in plea discussions, and noted that “[t]he principles of separation of powers, accountability in government and impartiality in judicial administration are inconsistent with the extensive delegation of judicial power to prosecutors that today’s guilty plea system has wrought.” Warner, 762 So.2d at 512 (quoting Albert W. Al-schuler, The Trial Judge's Role in Plea Bargaining, 76 Colum. L.Rev. 1060, 1129 (1976)). “[Ojther identified advantages are directness (it provides a firm basis for reliance on a plea); simplicity (it involves a single step); decorum (it provides a formal courtroom atmosphere, as contrasted with the informality of the current process); and procedural uniformity (it provides a forum for the implementation of uniform safeguards).” Warner, 762 So.2d at 513.

We also took note of various concerns inherent in judicial involvement in the plea bargaining process, stating:

Many of the concerns repeatedly expressed (such as the defendant’s perception of coercion, the defendant’s fear of reprisal if a plea offer is rejected, the undermined use of presentence investigation reports and victim input, the illusory nature of a bargained-for sentence, and — where the bartered-for sentence will not be imposed — the potential “discrediting” of a subsequent assertion of innocence upon withdrawal of the guilty plea) are inherent in the plea bargaining model itself, but may be magnified when the powerful “neutral” in the system becomes embroiled in the negotiation process.

Warner, 762 So.2d at 511.

In the end, we resolved the competing approaches — proscription of judicial participation, active judicial participation, or limited judicial involvement — in the plea bargaining process by allowing judicial involvement under certain circumstances and with certain procedural safeguards patterned after the model adopted by the Michigan Supreme Court in People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993). See Warner, 762 So.2d at 513. We set forth these safeguards “‘to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.’ ” Id. (quoting Cobbs, 505 N.W.2d at 212). We held that “[o]nce involved, the court may actively discuss potential sentences and comment on proposed plea agreements.” Warner, 762 So.2d at 514. The judge may also “state on the record the length of sentence which, on the basis of information then available to the judge, appears to be appropriate for the charged offense.” Id.

The limitation imposed on judicial involvement in plea bargaining that is at the center of the instant legal conflict in this case is that “[t]he trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party.” Warner, 762 So.2d at 513. After setting forth the various limitations imposed prospectively on judicial participation in plea discussions, we announced in Warner that a harmless error analysis would apply to appeals based upon claims of improper judicial involvement in the plea bargaining process. See Warner, 762 So.2d at 515 n. 14. Thus, we rejected the proposition that judicial involvement in a plea dialogue renders the plea per se invalid. See id.

In spite of our statement in Warner that a harmless error analysis would apply to claims of improper court-initiated plea negotiations, Warner, 762 So.2d at 515 n. 14, the Chaves-Mendez court expressly held that “[t]he trial court’s initiation of plea negotiations with the defendant was per se reversible error.” Chaves-Mendez, 809 So.2d at 910. For this reason, the decision in Chaves-Men-dez is disapproved to the extent that it holds that it is per se reversible error when the trial court improperly initiates a plea dialogue without invitation of a party. We further hold that an otherwise legal sentence resulting from such a plea dialogue is not rendered illegal for purposes of appeal by the State where an improper court-initiated plea dialogue does occur. Section 924.07 does not provide for such an appeal and we cannot modify or extend the statute by reading that authorization into the statute. Thus, the Fourth District in the instant case correctly determined that the State was not authorized by statute to appeal from an otherwise legal sentence that is imposed after a plea dialogue, even if that plea dialogue is initiated by the trial court.

Accordingly, we resolve the conflict issue by approving the result reached in the decision of the district court below dismissing the State’s appeal; and we disapprove the decision in Chaves-Mendez to the extent it holds that a sentence resulting from an improperly court-initiated plea dialogue is per se reversible.

THIS CASE

Although we approve the result reached by the Fourth District below, we must clarify that the record in this case does not support the district court’s conclusion that the trial court improperly initiated the plea dialogue in this case. The following exchanges occurred at the sentencing hearing:

MS. BERMAN (the prosecutor): Your honor, may I approach?
THE COURT: Yes.
MS. BERMAN: On the new case, the state’s notice of HOQ [referring to habitual offender qualification].
THE COURT: Okay. Well.
MR. LEWIS (defense counsel): We are very hopeful to resolve this case this morning.
THE COURT: That might be a good idea, if you did.
MR. LEWIS: That is what I’m thinking. He scores 18 months at the bottom. These cases, Judge, are I think a one rock case or something, Cocaine case, and the grand theft case is he had somebody else in the car who picked up an old power washer that I seriously doubt was worth over two hundred dollars.
THE COURT: State, what are you looking for? What kind of priors does he have?
MR. LEWIS: He has a lot of drug offenses and a couple property crimes.
MS. BERMAN: Cocaine possession, burglary dwelling, grand theft, grand theft auto, possess hydrocodone, fraud.
THE COURT: Scores 18 months?
MR. HILLSTROM (the State): On the bottom.
THE COURT: You can have the bottom of the guidelines today. I won’t habitualize him if he wants that today. If [he] doesn’t, he takes his chances down the road.
MR. LEWIS: He is happy to take it.
THE COURT: All right. Get a plea form.
MR. HILLSTROM: Your Honor, for the record, the state would be objecting. We are entitled to a hearing on a HOQ.
THE COURT: Understood. Your objection is noted. I need two separate plea forms.
MR. HILLSTROM: Before you take the plea, the state again would be requesting a hearing on the HOQ.
THE COURT: Okay. I will just say this, I said it before, for record purposes, my understanding of the law is whether I find him to be a habitual offender is discretionary with the court, even if you put on sufficient evidence to indicate he is a habitual offender, it would still be discretionary with the court. And as I have indicated, if Mr. McMahon wants to enter his plea here today, I would exercise my discretion and sentence him as a regular offender, not as a habitual offender.
MS. BERMAN: Noted, Your Honor.
THE COURT: Okay. But I will accept your objection for the record.
MS. BERMAN. Thank you, Your Honor.
THE COURT: All right. Are you ready [to] proceed other than that.
MS. BERMAN: Yes, Your Honor.
THE COURT: The minimum or least restrictive sentence you could receive under the guidelines is 18 months in Florida State Prison; do you understand that?
THE WITNESS: Yes, Your Honor.
THE COURT: My offer to you today, this is an open plea to the court, my offer to you was that if you wanted to plead to all of these charges here today, I would sentence you to the bottom of the guidelines, which is 18 months in Florida State Prison. Was that your understanding of my offer?
THE WITNESS: Yes, Your Honor.
THE COURT: Was that an offer you wish to accept?
THE WITNESS: Yes, Your Honor.
THE COURT: Mr. Lewis, was that your understanding of my offer?
MR. LEWIS: Yes, sir.
THE COURT: And State, I’m doing this over your objection?
MS. BERMAN: Yes, Your Honor.
THE COURT: It is nonetheless a legal sentence ?

MS. BERMAN: Yes, Your Honor. (Emphasis added.) McMahon was then allowed to enter a guilty plea to the charges and was sentenced to eighteen months.

The record reflects that defense counsel in this case actually initiated the trial court’s participation in the plea dialogue. Consistent with our decision in Warner, the trial court was then permitted to discuss potential sentences. See Warner, 762 So.2d at 514 (“Once involved, the court may actively discuss potential sentences and comment on proposed plea agreements.”). Moreover, this colloquy reflects none of the coercive effects that we sought to avoid by the limitations we imposed in Warner.

We also note that, even if the State had a statutorily authorized ground to appeal the sentence, the State failed to preserve an objection to an improper court-initiated plea dialogue in this case. The State preserved only its objection to the trial court’s refusal to hold a habitual felony offender (HFO) hearing before sentencing the defendant. The State is correct that under section 775.084(4)(f), Florida Statutes (2008), “[a]t any time when it appears to the court that the defendant is eligible for [HFO] sentencing under this section, the court shall make the determination as provided in paragraph (3)(a).” § 775.084(4)(f), Fla. Stat. (2008). Section 775.084(3)(a) provides that “[i]n a separate proceeding, the court shall determine if the defendant is a habitual felony offender.” § 775.084(3)(a), Fla. Stat. (2008). When such a hearing is held and the defendant is found to qualify for HFO sentencing, the trial court must sentence the defendant as a habitual felony offender unless the court finds that such sentence is not necessary for the protection of the public. Such a finding must then be provided in writing. See § 775.084(3)(a), Fla. Stat. (2008).

Section 775.084 requires the trial court to hold the HFO hearing, and we in no way condone a trial court’s disregard of the statutory procedure. However, the question is whether this is simply an error in the sentencing process for which the State is not authorized to appeal or whether the error renders the sentence “illegal” thus qualifying under section 924.07 for a State appeal. The district court held below:

[T]he trial court’s failure to conduct a hearing on the defendant’s habitual felony offender status is not an appealable issue for the state. ... As discussed above, the sentence imposed by the trial court in the instant case was within the sentencing guidelines and, therefore, legal. Accordingly, the sentencing order is not appealable by the state, and this appeal must be dismissed.

McMahon, 47 So.3d at 370 (citing State v. Hewitt, 21 So.3d 914 (Fla. 4th DCA 2009)). We agree. The sentence imposed in this case was within the range determined by the sentencing scoresheet. An illegal sentence has generally been defined as “one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual circumstances.” State v. Akins, 69 So.3d 261, 268-69 (Fla.2011) (quoting Williams v. State, 957 So.2d 600, 602 (Fla.2007)); see also Jackson v. State, 983 So.2d 562, 574 (Fla.2008) (same). Because the sentence imposed in this case was within the range established by the sentencing scoresheet, and because the trial court was not mandated to impose an HFO sentence even if a hearing had been held and McMahon was proven to qualify, the sentence in this case is not “illegal.”

Most importantly, neither section 775.084 nor section 924.07 provides for a State appeal from a sentence imposed after the trial court denies a request for an HFO hearing. Accordingly, we hold that the trial court’s procedural error in disregarding the mandates of the habitual felony offender statute do not render McMahon’s sentence illegal or otherwise appealable by the State under section 924.07, Florida Statutes. For this reason, and because we also conclude that the State was not authorized to appeal the sentence on the ground that the trial court improperly initiated a plea dialogue in this case, we approve the result reached by the Fourth District in its decision below.

CONCLUSION

Based on the foregoing, we approve the result reached in the decision of the Fourth District in State v. McMahon, 47 So.3d 368 (Fla. 4th DCA 2010), and we disapprove the decision of the Fifth District Court of Appeal in State v. Chaves-Mendez, 809 So.2d 910 (Fla. 5th DCA 2002), to the extent that it holds that it is per se reversible error when the trial court improperly initiates a plea dialogue without invitation of a party.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

PARIENTE, J., concurring with an opinion, in which LABARGA and PERRY, JJ., concur.

CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs.

PARIENTE, J.,

concurring.

I write to briefly respond to Chief Justice Canady’s assertion that the plain language of section 924.07(l)(e) allows the State to appeal an error in the sentencing process. The plain language of the statute allows the State only to appeal a sentence on the ground that the sentence is illegal. The sentence in this case is not illegal, and there is no question that the trial court had the discretion to refuse to impose a habitual offender sentence.

Chief Justice Canady criticizes the majority’s narrow interpretation of the meaning of “illegal” sentence, which the Court has used to interpret whether a defendant has the right to attack a sentence on the ground it is illegal. He argues for a more expansive definition of “illegal” to allow the State a broader right of appeal, even while acknowledging the distinction repeatedly made both by this Court and district courts between errors in the sentencing process and errors in the ultimate sentence.

However, as was recognized by the majority based upon more than a century of precedent, the State’s right to appeal in criminal cases must be expressly conferred by statute. The scope of what the State can appeal is extremely limited and has been narrowly construed. As recently explained by Chief Judge Gross of the Fourth District Court of Appeal:

“[Ujnless expressly provided for by statute, in criminal cases the state is not entitled to appeal adverse judgments and orders.” State v. Creighton, 469 So.2d 735, 740 (Fla.1985), receded from on other grounds, Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, 774 (Fla.1996). This policy “has deep roots in the common law, for it was generally understood, at least in this country, that the sovereign had no right to appeal an adverse criminal judgment unless expressly authorized by statute to do so.” Arizona v. Manypenny, 451 U.S. 232, 245, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981). Section 924.07, Florida Statutes (2009), sets forth “strictly limited and carefully crafted exceptions designed to provide appellate review to the state in criminal cases where such is needed as a matter of policy and where it does not offend against constitutional principles.” Creighton, 469 So.2d at 740. The only mention of a “judgment of acquittal” in the statute is contained in subsection 924.07(l)(j), which provides that “[t]he state may appeal from ... [a] ruling granting a motion for judgment of acquittal after a jury verdict.” (Emphasis added).

State v. Stone, 42 So.3d 279, 281 (Fla. 4th DCA 2010) (parallel citations omitted).

For all these reasons, I agree with the majority that the State had no right to appeal in this case because the sentence imposed by the trial court was not illegal.

LABARGA and PERRY, JJ., concur.

CANADY, C.J.,

dissenting.

I dissent from the majority’s decision to approve the result reached by the Fourth District in State v. McMahon, 47 So.3d 368 (Fla. 4th DCA 2010). I would quash McMahon on the ground that the Fourth District erred in denying the State’s right to appeal the sentence imposed by the trial court where the sentence was imposed in violation of the express requirements of the habitual felony offender (HFO) statute.

Section 924.07(l)(e), Florida Statutes (2009), unambiguously authorizes the State to appeal from a criminal “sentence, on the ground that it is illegal.” The majority states that “the Court ‘must give the statutory language its plain and ordinary meaning,’ ” majority op. at 472 (quoting Exposito v. State, 891 So.2d 525, 528 (Fla.2004)), but then proceeds to give no consideration to the “plain and ordinary meaning” of the statute. The meaning of the statute at issue here is both obvious and simple. Illegal means “contrary to, or forbidden by, law.” 7 The Oxford English Dictionary 652 (2d ed. 1989). A criminal sentence which is imposed in violation of a statutory requirement — and thus is “contrary to, or forbidden by, law” — falls within the plain and ordinary meaning of the statute’s reference to a “sentence ... that ... is illegal.”

Here, it is undisputed that the sentence imposed by the trial court was imposed in violation of the provisions of section 775.084(3), Florida Statutes (2008), which governs the imposition of HFO sanctions. Under the statute, when the State seeks HFO sentencing, the sentencing court must conduct a separate proceeding to determine whether the defendant qualifies for HFO status. § 775.084(3)(a), Fla. Stat. (2008). The statute expressly requires that the sentencing court impose an HFO sanction on any qualifying defendant unless the court finds that doing so “is not necessary for the protection of the public” and provides reasons for that finding. § 775.084(3)(a)(6), Fla. Stat. (2008). In sentencing McMahon, the trial court — over the State’s objection — failed to conduct the required separate proceeding. And, although it is undisputed that McMahon qualified for HFO status, the trial court failed to make the statutorily required finding that the imposition of an HFO sanction was “not necessary for the protection of the public.” The trial court thus imposed sentence on McMahon in violation of the unambiguous requirements of section 775.084(3)(a).

Rather than applying the plain and ordinary meaning of section 924.07(l)(e), the majority applies the meaning of a term of art — such as it is — developed in a legal setting wholly inapposite to the statutory context of section 924.07. The majority thereby imposes a restriction on the State’s right of appeal that does violence to the unambiguous meaning of the statute authorizing appeals with respect to any “sentence, on the ground that it is illegal.” By denying the State the right to appeal the sentence imposed in lawless disregard of the requirements of the HFO statute, the majority also does violence to the HFO statute.

The majority states that “[a]n illegal sentence has generally been defined as ‘one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual circumstances.’ ” Majority op. at 477 (quoting State v. Akins, 69 So.3d 261, 268-69 (Fla.2011)). The majority recognizes “that this definition of ‘illegal sentence’ was stated in the context of an appeal from a defendant’s motion to correct an illegal sentence.” Majority op. at 477 n. 7. Despite the recognition that this definition of “illegal sentence” has been applied in the context of Florida Rule of Criminal Procedure 3.800, the majority states that it can “discern no practical or legal rationale that would require application of a different definition when determining if the State is authorized under section 924.07(l)(e) to appeal a ‘sentence, on the ground that it is illegal.’ ” Id. (quoting § 924.07(l)(e), Fla. Stat. (2009)).

But the different context of a direct appeal as opposed to a postconviction proceeding is of great significance, both legally and practically. Our case law makes clear that the definition of “illegal sentence” relied on by the majority to limit the State’s right of appeal is a definition that diverges from the plain meaning of illegal sentence based on considerations that are unique to the postconviction context. It makes no legal or practical sense to wrench that definition out of the post-conviction context and apply it here.

The definition of “illegal sentence” under rule 3.800, which is employed by the majority here, is derived from a formulation first articulated by Judge Farmer in Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999). In Carter v. State, 786 So.2d 1173 (Fla.2001), we expressly approved this definition “because it comes close to formulating a workable definition of ‘illegal’ sentence.” 786 So.2d at 1181. We went on to observe “that it would be more helpful to provide a predictive description of the types of sentencing errors that may be corrected as illegal, rather than relying on a somewhat elusive definition of ‘illegal sentence.’ ” Id. It is not necessary, nor would it be useful, to recount the rather complex history of the efforts of the Florida courts to assign meaning to the term “illegal sentence” in the postconviction rule provision which first became effective in 1968. Suffice it to say, our definition of “illegal sentence” has been a moving target. The lurching about in the case law to find a workable definition of “illegal sentence” has been driven entirely by considerations which apply in the postconviction context but do not apply in the context of a direct appeal. A brief examination of our decision in Carter makes this plain.

In Carter, we discussed at some length the “[ejvolving [djefinition of [illegal [sentence” in our case law. 786 So.2d at 1176-78. In the course of this discussion, we stated:

Rule 3.800(a) is intended to balance the need for finality of convictions and sentences with the goal of ensuring that criminal defendants do not serve sentences imposed contrary to the requirements of law. Thus, over the past several years, this Court has attempted to formulate a workable definition of what type of sentences should be considered “illegal” for purposes of rule 3.800(a).

Id. at 1176 (emphasis added). We thus recognized that a sentence “imposed contrary to the requirements of law” might not be treated as an “illegal sentence” under the postconviction rule. In adopting Judge Farmer’s definitional formulation, we stated that “[w]e continue to refine our definition of ‘illegal sentence’ in an attempt to strike the proper balance between concerns for finality and concerns for fundamental fairness in sentencing.” Id. at 1178 (emphasis added); see also State v. McBride, 848 So.2d 287, 289 (Fla.2003).

In reality, the judicial definition of “illegal sentence” has hardly provided definitive guidance for determining the scope of errors for which relief is available under rule 3.800(a). The case law addressing when relief is available for an illegal sentence under rule 3.800(a) constitutes a series of ad hoc policy determinations that cannot be explained by the judicial definition. This is vividly illustrated by our decision in Saintelien v. State, 990 So.2d 494 (Fla.2008), in which we held “that a rule 3.800(a) motion to correct an illegal sentence may be used to challenge a sexual predator designation ... where it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.” 990 So.2d at 495. In Saintelien, the majority made no reference to the judicial definition of “illegal sentence” and expressed agreement with the view that “it doesn’t much matter that a sexual predator designation is not a sentence or a punishment.” Id. at 496 (quoting Nicholson v. State, 846 So.2d 1217, 1219 (Fla. 5th DCA 2003)). So it is that illegal-sentence relief is available even for an error that is not an error with respect to a sentence.

The statutory provision granting the State the right to appeal a “sentence, on the ground that it is illegal” was initially enacted in 1939. Ch. 19554, Laws of Fla. (1939). The majority articulates no reason — much less any persuasive reason— that the plain meaning of the statutory text should be defeated by the judicial definition of “illegal sentence” under the postconviction rule that first became effective in 1968. The definition relied on by the majority is a term of art that we have expressly recognized arose from our efforts “to formulate a workable definition of what type of sentences should be considered ‘illegal’ for purposes of rule 3.800(a).” Carter, 786 So.2d at 1176 (emphasis added). The policy considerations which un-dergird this judicial definition — which lead to the conclusion the interest in finality requires that certain errors with respect to a sentence are not correctable by postcon-viction relief — have no application in the context of direct appeals by the State under section 924.07(l)(e). Under the plain meaning of that statute, the State has the right to appeal the sentence that was imposed on McMahon in violation of the requirements of law.

McMahon’s sentence should be reversed, and the case should be remanded for a sentencing proceeding that complies with the requirements of the HFO statute.

POLSTON, J., concurs.

      . This 2009 criminal case was governed by the Criminal Punishment Code (CPC), and as we noted in Jackson v. State, 64 So.3d 90, 91 n. 1 (Fla.2011), courts throughout the state continue to use the phrase "sentencing guidelines” when clearly referring to sentencing under the current CPC.

      . "Misapplication of our precedent provides a basis for express and direct conflict jurisdiction.” Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., 67 So.3d 187, 189 n. 1 (Fla.2011) (citing Wallace v. Dean, 3 So.3d 1035, 1040 (Fla.2009); Rosen v. Fla.

        Ins. Guar. Ass'n, 802 So.2d 291, 292 (Fla.2001)).

      . The grounds for appeal by the State set forth in section 924.071, Florida Statutes (2009), are not applicable in this case. Section 924.071 provides for state appeals from certain pretrial orders and delineates when a stay is applicable during such appeal.

      . We described Warner as a “refinement of Davis ” in our decision in Wilson v. State, 845 So.2d 142, 152 (Fla.2003). The issue in Wilson was whether a presumption of vindictiveness arises in all cases when the trial court has participated in an unsuccessful plea discussion and the defendant subsequently receives a harsher sentence from the same judge after a trial or hearing. Wilson, 845 So.2d at 144. We concluded that it did not. See id., at 159.

        . Once involved, the judge may also "consider pre-plea victim input and a pre-plea pre-sentence investigation report prior to suggesting any sentence; however, if victim input will not be received until a later time, the judge must make it clear on the record that the court is required to and will consider any victim input which is offered pursuant to section 921.143, Florida Statutes, prior to making a final determination regarding an appropriate sentence.” Warner, 762 So.2d at 514 (footnote omitted). "To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Warner, 162 So.2d at 514. Additionally, although the preliminary evaluation of the case made by the judge is not binding, the defendant who pleads guilty or no contest has an absolute right to withdraw the plea if the judge later determines that a greater sentence must be imposed. See id.

      . We do not disapprove of Chaves-Mendez in its entirety because the sentence that was appealed by the State in Chaves-Mendez was an improper downward departure sentence. See Chaves-Mendez, 809 So.2d at 910 (Sawa-ya, J., concurring and concurring specially). Such a sentence is clearly appealable by the State. See § 924.07(l)(i), Fla. Stat. (2009).

      . We recognize that this definition of "illegal sentence" was stated in the context of an appeal from a defendant’s motion to correct an illegal sentence. However, we discern no practical or legal rationale that would require application of a different definition when determining if the State is authorized under section 924.07(l)(e) to appeal a "sentence, on the ground that it is illegal.” § 924.07(l)(e), Fla. Stat. (2009).


author: PER CURIAM.

text:
    Andre FROST, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-405.
    Supreme Court of Florida.
    April 5, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia A. Terenzio and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Frost v. State, 53 So.3d 1119 (Fla. 4th DCA 2011), a case that was stayed pending disposition of Harris v. State, 71 So.3d 756 (Fla.2011), cert, granted, — U.S. -, 132 S.Ct. 1796, 182 L.Ed.2d 615 (U.S. Mar. 26, 2012). We thereafter issued an order directing respondent to show cause why this Court should not accept jurisdiction in this case, summarily quash the decision being reviewed, and remand for reconsideration in light of our decision in Harris. Upon review of the response, we have determined to accept jurisdiction. Accordingly, we grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Fourth District Court of Appeal for application of our decision in Harris.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., and POLSTON, J., dissent.