author: Conner, J. Kuntz, J., dissenting.

text:
    Geovani JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D15-4452 4D15-4519 4D15-4539
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    ON MOTIONS FOR CLARIFICATION AND CERTIFICATION OF CONFLICT
   Conner, J.

We grant the State's motions for clarification and certification of conflict, withdraw our opinion dated August 22, 2018, and issue the following in its place:

Geovani Johnson ("Defendant") appeals his convictions and sentences from three cases. In two of the cases were violation of probation proceedings based on new charges filed in the third case. We consolidated the appeals. As to the new charges, Defendant contends the trial court erred by: (1) failing to conduct a proper Melbourne analysis to a peremptory challenge by the State; and (2) violating Defendant's Sixth Amendment confrontation right by allowing the State to introduce a 911 call. We affirm on the Sixth Amendment issue without discussion. But because we agree the trial court did not comply with Melbourne , we reverse Defendant's convictions and sentences and remand for a new trial on the new charges. The ultimate question we answer in this case is whether the Melbourne procedure is always a three-step process, or a three-step process if requested . We determine that the Melbourne procedure is indeed always a three-step process. We affirm the trial court's judgment and sentences as to the violation of probation proceedings.

Background

In Case Nos. 13011816CF10A and 13012248CF10A, Defendant was charged with violating probation, based in part on three counts of robbery with a firearm and possession of a firearm by a convicted felon filed in Case No. 14013212CF10A. The new charges proceeded to a jury trial.

During jury selection, the State exercised a peremptory challenge on Juror No. 10, an African-American male. At Defendant's request, the trial court asked the state for a race-neutral reason for the strike. The State responded:

The State does have a race-neutral reason. [Juror No. 10 ] indicated that he would prefer CSI evidence.[ ] Additionally, the Defense has stricken two black females in their first round of strikes. They've also stricken black individuals for cause. And this is --

Cutting off the State, the trial court stated: "All right. Okay. I find that to be [a] race-neutral reason. I'm going to uphold State's use of a peremptory on [Juror No. 10 ]." Defendant did not make any further objection or argument at that time. However, at the conclusion of the jury selection process, when asked if each side accepted the panel of jurors, the defense advised the panel was not acceptable, in part because the trial court "denied my Melbourne vs. State objection to the State striking [Juror No. 10 ]."

The jury found Defendant guilty of three counts of robbery with a weapon, lesser-included offenses, and not guilty of possession of a firearm by a convicted felon. The court entered judgment and sentenced Defendant to concurrent prison terms for the three robberies. The trial court revoked Defendant's probation in the other two cases and imposed sentences in those cases. Defendant gave notice of appeal.

Appellate Analysis

We review a trial court's decision to uphold or deny a peremptory challenge for abuse of discretion. Truehill v. State , 211 So.3d 930, 942 (Fla. 2017). As a reviewing court, we must presume that peremptory challenges are exercised in a nondiscriminatory manner. Poole v. State , 151 So.3d 402, 409 (Fla. 2014).

"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.' " San Martin v. State , 705 So.2d 1337, 1343 (Fla. 1997).

[T]o strike the appropriate balance between a party's right to exercise peremptory challenges and the attempt to eliminate invidious discrimination in juror selection, [our supreme 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 [an improper] discriminatory basis.[[ ]]

Hayes v. State , 94 So.3d 452, 460-61 (Fla. 2012) (emphasis added). Based on the United States Supreme Court's holdings in Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Purkett v. Elem , 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), and Neil -Slapp y case law, the procedure was stated as consisting of three steps:

Step 1: Objection and Prima Facie Case
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 protected group; and c) request that the court ask the striking party its reason for the strike.
Step 2: Race-Neutral Explanation
The court must then ask the proponent of the strike to explain the 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 3: Determination of Genuineness
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. The court's focus here is not on the reasonableness of the explanation but rather its genuineness.

See Melbourne , 679 So.2d at 763-64 ; Hayes , 94 So.3d at 461. In interpreting the true scope of the Melbourne procedure, we will rely on case law generated by Batson and Purkett and its progeny, especially two decisions from the United States Supreme Court.

Step 3 of the Melbourne ( Batson ) Procedure

Defendant's appeal focuses on Step 3 of the Melbourne procedure. Relying on Hayes , Defendant contends the record does not support a conclusion that the trial court properly conducted Step 3. Specifically, Defendant argues the trial court did not review, analyze, or conduct any "judicial assessment" of the reasons given by the State for striking Juror No. 10 ; instead, the trial court summarily ratified the peremptory challenge. Additionally, Defendant argues the "cold record" is "devoid of any indication" that the trial court "considered or weighed any relevant circumstances in deciding whether the State's strike was discriminatory."

The State responds, arguing a lack of preservation because Defendant failed to raise an issue of noncompliance with Melbourne below. As to the merits of Defendant's arguments, the State also relies on Hayes , contending that when a defendant objects to the State's exercise of a peremptory challenge, and the trial court upholds the strike, the defendant carries the burden of persuasion that the State's strike was exercised in a discriminatory manner. The State contends the record shows the trial court complied with Step 3. Relying on Lidiano v. State , 967 So.2d 972, 975 (Fla. 3d DCA 2007), the State argues that "[t]he trial court is not required to orally perform its genuineness analysis or to articulate the basis for its ruling." Moreover, the State contends that because it pointed out, in providing its race-neutral reason for striking Juror No. 10, that the defense had stricken two black females in the defense's first round of strikes, after the State had twice accepted the jury panel including those jurors, the record reflects that the trial court was aware of and considered the circumstances relevant to determining if a strike was improperly discriminatory and implicitly found there was no pretext in the strike.

Spencer v. State

Melbourne was decided in 1996. Twenty-two years later, courts still struggle with its proper application. Over the years, the case law has focused increasingly on Step 3 of the Melbourne procedure. The unresolved troublesome aspects of what Step 3 means and what it involves is perhaps best demonstrated by our supreme court's most recent opinion on the subject, Spencer v. State , 238 So.3d 708 (Fla. 2018) (" Spencer II "). The Spencer II opinion reveals a divided court on the issue of the preservation requirements for a Melbourne noncompliance claim. Ultimately, all of the justices agreed with the Second District that Spencer's conviction should not be reversed for noncompliance with Melbourne . In a plurality opinion, three justices agreed the Melbourne noncompliance claim was preserved. Id. at 718. Two justices concurred in result, with an opinion disagreeing that the claim was preserved, suggesting that the court recede from language in Hayes , and readopt the court's prior preservation reasoning in Floyd v. State , 569 So.2d 1225 (Fla. 1990). Id. at 719-20 (Lawson, J., concurring in result). Two justices concurred in result without an opinion. Id. at 718.

In Spencer II , the supreme court considered a certified question from the Second District. Id. at 711. On direct appeal, the Second District upheld Spencer's conviction, determining that his claim that the trial court did not comply with Step 3 of Melbourne was not preserved. Spencer v. State , 196 So.3d 400, 401 (Fla. 2d DCA 2016) (" Spencer I "). As to one prospective juror, Spencer never asserted the State's reason for the strike was a pretext. Id. at 410. As to the other prospective juror, Spencer did not object to the manner in which the trial court conducted the Melbourne procedure. Id. The Second District opined that the trial court was not required to perform a full genuineness analysis on the record every time a party initiates a Melbourne challenge, and if the opponent of the strike wants the trial court to determine the genuineness of the reason proffered for the strike, the opponent "must expressly make a claim of pretext and at least attempt to proffer the circumstances that support its claim." Id. at 401. After conducting an extensive analysis of the law regarding Step 3, the Second District wrote: "It is true that the trial courts must make the three decisions required by Melbourne if requested , but the parties are not entitled to sit back and have the court go through this process for them." Id. at 409 (bold emphasis added).

The Second District certified a three-part question of great public importance:

During a Melbourne hearing, when a trial court finds that the proponent's reason for a peremptory challenge is facially neutral, is it the burden of the opponent (1) to claim the reason is a pretext, (2) to place into the record the circumstances supporting its position, and (3) to object if the trial court's ruling does not contain adequate findings on the issue of genuineness?

Id. at 411.

The plurality opinion of the supreme court began its analysis with the observation that, "[t]he real issue presented here is whether our decision in Melbourne requires a trial court to strictly adhere to the procedure as outlined in Melbourne and its progeny." Spencer , 238 So.3d at 711. Rejecting the elevation of form over substance, the plurality agreed with the Second District that strict adherence to the Melbourne procedure is not required. Id. The plurality sought "to clarify that preservation of an issue under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not require anything more than what we have previously articulated," citing Melbourne and Joiner v. State , 618 So.2d 174, 176 (Fla. 1993). Id.

After discussing a progression of case law from 1984 to 2004, the plurality then discussed some of the pronouncements in the Court's 2012 Hayes opinion. Id. at 712-15. Critical to its position, the plurality relied on two statements in Hayes :

[W]here 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.

and

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.

Id. at 715 (quoting Hayes , 94 So.3d at 463, 467 ). Immediately thereafter, the plurality said:

Spencer argues that this Court should answer the certified question in the negative because the third step of Melbourne , like Batson , is a decisional step where the trial judge evaluates the parties' persuasiveness after considering all relevant circumstances. Spencer argues that the preservation occurs in step one that can only be waived as articulated in Joiner v. State , 618 So.2d 174, 176 (Fla. 1993), by failing to renew objections before the jury is empaneled. Alternatively, the State argues that because the opponent of a peremptory strike bears the burden of persuasion, that burden should include expressly stating a claim of pretext and presenting facts and argument to support such a claim. We agree with both arguments .

Id. (emphasis added) (footnote omitted). In rejecting the Second District's opinion regarding preservation, the plurality said:

Although the Second District acknowledges that "[i]t is unquestionably the better practice for the trial court, having made a determination of neutrality under step 2 of the Melbourne analysis, to ask the opponent whether he or she wishes to challenge the genuineness of the proponent's reason," it nevertheless holds that there is "no reason to reverse a judgment and sentence following an entire trial when the trial court omits this step without objection from anyone." Spencer , 196 So.3d at 407. We disagree with this statement because it is contradictory to the plain language of Hayes . Hayes , 94 So.3d at 461 ("Compliance with each step [of Melbourne ] 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.").
While we were not "abandoning requirements for full preservation in Hayes ," Spencer , 196 So.3d at 408, Hayes provides that the trial court has a duty to perform the correct legal analysis independent of trial counsel's duty . Hayes , 94 So.3d at 465 ("Since the reason defense counsel offered was facially gender neutral, the trial court was then required to engage in step three-the genuineness analysis."); see also Batson , 476 U.S. at 98, 106 S.Ct. 1712 (after the prosecution articulates a neutral explanation "[t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination."); Slappy , 522 So.2d at 22 ("[A] judge cannot merely accept the reasons proffered at face value, but must evaluate those reasons as he or she would weigh any disputed fact."). Here, the trial judge performed his duty when he requested a response from defense counsel immediately after the State provided its purported race-neutral reason and before the trial court ruled on the genuineness of the reason.

Id. at 716 (alterations in original) (emphases added). Upon that reasoning, the plurality concluded the trial court complied with the Melbourne procedure and affirmed the Second District's conclusion there was no reversible error. Id. at 718.

While concurring with the result, the concurring opinion viewed some of the principles discussed in Hayes and relied upon by the plurality as dicta. Id. at 718-20, 724 (Lawson, J., concurring in result). Rejecting the dicta, the concurring opinion relied on principles discussed in Floyd , which requires the opposing counsel to challenge the proffered race-neutral explanation to preserve the issue. Id. at 718. The concurring opinion felt it was time to resolve the seeming conflict between Floyd and Hayes , and asserted the Court should recede from the dicta in Hayes . Id. at 720.

Although the concurring opinion did not expressly adopt the "if requested" language of the Second District in Spencer I , the concurring opinion appears to have asserted that approach. The concurring opinion stated three reasons for agreeing with the Second District. Id. In stating the second reason, the concurring opinion wrote:

Second, contrary to the assertion in Hayes , the trial judge does not need to "undertake an on-the-record genuineness inquiry" in the absence of any challenge to the race-neutral reason to allow for "meaningful appellate review." As explained in Melbourne , if the opponent of the strike does not make a record from which the trial court's decision can be challenged on appeal as "clearly erroneous," the trial judge's ruling "will be affirmed."

Id. at 721 (emphases added) (citation omitted).

Post-Spencer Analysis

Until a majority opinion by our supreme court says otherwise, in this District, we contend there arguably is no conflict between Hayes and Floyd . We further hold that the Melbourne procedure is indeed a three-step process, and the intent of our supreme court, in adopting the procedure, was to require that all the steps be followed. We reject the notion that the three-steps are required only "if requested."

Our premise is that the three-step procedure stated in Melbourne is analogous to the procedures used by the judiciary to address claims of discovery violations during a criminal trial and assertions of the defendant's incompetence to proceed in criminal prosecutions.

When a claim is made during a criminal trial that there has been a discovery violation, the trial court must engage in a process of analysis, regardless of whether the proponent of the objection requests a Richardson hearing. Jones v. State , 32 So.3d 706, 710-11 (Fla. 4th DCA 2010) (determining that the Richardson hearing requirement applies to a possible discovery violation, even if the defendant does not request a Richardson hearing). Likewise, if a defendant in a criminal prosecution makes an initial showing of incompetence to proceed, the trial court must take certain steps before proceeding, regardless of whether the defendant pursues the matter or not. Dougherty v. State , 149 So.3d 672, 677-78 (Fla. 2014) (determining that once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, failure to make an independent determination regarding a defendant's competency to stand trial is reversible error); Dortch v. State , 242 So.3d 431, 433 (Fla. 4th DCA 2018) (determining that once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, failure to hold a hearing constitutes fundamental error which can be addressed for the first time on appeal). The rationale for imposing such duties on the trial court is to assure the integrity and rudimentary fairness of the proceedings (prohibiting trial by ambush or criminally punishing someone who is incompetent).

In our view, elements of the Melbourne procedure impose a duty on trial courts, separate and apart from the duties of the advocates, for similar reasons. That is to say, Melbourne imposes some procedural requirements as a duty on trial courts that do not require objections at each step to preserve the matter for appellate review; however, with regards to factual accuracy of assertions by the proponent of a peremptory strike, the standard preservation requirements apply.

We conclude that at a minimum, Melbourne imposes a duty on trial courts at Step 3 to request a response to the proffered explanation from the opponent of a peremptory challenge once Step 2 has been completed. We continue to adhere to our prior case law 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 [S]tep [3]." Denis v. State , 137 So.3d 583, 586 (Fla. 4th DCA 2014) (citing Hayes , 94 So.3d at 463 ). We continue to agree with the plurality opinion in Spencer II that:

[W]here 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.

Spencer , 238 So.3d at 715 (quoting Hayes , 94 So.3d at 463 ); see also R.J. Reynolds Tobacco Co. v. Enochs , 226 So.3d 872, 874 (Fla. 4th DCA 2017) (same); West v. State , 168 So.3d 1282, 1285 (Fla. 4th DCA 2015) (same); Denis , 137 So.3d at 586 (same); Burgess v. State , 117 So.3d 889, 891 (Fla. 4th DCA 2013) (same); King v. State , 106 So.3d 966, 968 (Fla. 4th DCA 2013) (same); Victor v. State , 126 So.3d 1171, 1172 (Fla. 4th DCA 2012) (same); Cook v. State , 104 So.3d 1187, 1190 (Fla. 4th DCA 2012) (same). Also relying on Hayes , we have said that "[c]ompliance with each step [of the Melbourne procedure] 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." King , 106 So.3d at 968 (quoting Hayes , 94 So.3d at 461 ); see also Welch v. State , 992 So.2d 206, 212 (Fla. 2008) (determining a failure to follow Melbourne procedure constitutes reversible error).

As mentioned, however, we also continue to adhere to our prior case law that the opponent of a peremptory challenge who contests the factual assertions on which the strike is based must comply with the usual requirements for preservation. See Hoskins v. State , 965 So.2d 1, 9 (Fla. 2007) (stating that the defendant's failure to question the facts on which the strike was based waived the issue for review); Denis , 137 So.3d at 585 ; Doe v. State , 980 So.2d 1102, 1104 (Fla. 4th DCA 2008) (affirming the trial court's decision to sustain the peremptory strike because "[d]efense counsel did not challenge the facts on which the strikes were based and thus failed to preserve this issue for appellate review").

Like the plurality opinion in Spencer II , we disagree with the Second District's premise that "[i]t is true that the trial courts must make the three decisions required by Melbourne if requested ...." Spencer , 196 So.3d at 409 (bold emphasis added). In our view, such a premise suggests, at best, that only the first two steps of the Melbourne procedure are mandatory. Such a premise ignores that Step 3, in our view, is the penultimate decision and raison d'etre for the analysis. Without Step 3, the protection against an improper discriminatory peremptory challenge is lost.

The primary problem with the assertion that the Melbourne procedure does not always have to be a three-step process is that it ignores what we deem to be key language in United States Supreme Court case law, starting with Purkett . The discussion of the facts in Purkett does not make it clear what response, if any, Purkett made when the state proffered its race-neutral reasons for the preemptory strikes against two black men. What is clear is that the Supreme Court said:

If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.

Purkett , 514 U.S. at 767, 115 S.Ct. 1769 (emphasis added). Additionally, the Court wrote: "The Court of Appeals erred by combining Batson's second and third steps into one...." Id. at 768, 115 S.Ct. 1769. Such language indicates that each of the three steps are independently vital and significant.

Perhaps the strongest argument to be made that the Melbourne procedure is a three-step process that does not require the preservation requirements asserted by the Second District, the concurring opinion in Spencer , and the dissent in this case, comes from a review of United States Supreme Court case law subsequent to Purkett . Two opinions are pertinent to our analysis: Johnson v. California , 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) ; and Foster v. Chatman , --- U.S. ----, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016). From a review of those two cases, it does not appear that the Supreme Court requires a specific preservation argument to be made to prevail on a Batson challenge; instead, the challenge can be upheld years later, based on the appellate record.

In Johnson , although the Court addressed Step 1 of the Batson analysis, it is persuasive here. Johnson was convicted of second degree murder by a California jury. Johnson , 545 U.S. at 164, 125 S.Ct. 2410. At trial, he asserted a race-based challenge to the state's preemptory strikes of black prospective jurors. Id. at 165, 125 S.Ct. 2410. The trial court did not ask the prosecutor to explain the rationale for his strikes; instead, the trial court simply found that Johnson had failed to establish a prima facie case of discrimination under the governing state precedence. Id. The Supreme Court began its analysis by pointing out that in Batson , the Court remanded the case for further proceedings because the trial court failed to demand an explanation from the prosecutor for the preemptory challenge. Id. at 169-70, 125 S.Ct. 2410. The Court then wrote:

[I]n describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor's explanation, before deciding whether it was more likely than not that the challenge was improperly motivated.

Id. at 170, 125 S.Ct. 2410. After referencing the Batson requirement that the opponent of the strike carries the burden of persuasion, the Court then wrote:

[E]ven if the State produces only a frivolous or utterly nonsensical justification for its strike, the case does not end-it merely proceeds to step three. The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant's constitutional claim.

Id. at 171, 125 S.Ct. 2410 (footnote omitted) (internal citation omitted). The Court then opined:

The three-step process thus simultaneously serves the public purposes Batson is designed to vindicate and encourages "prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process."

Id. at 172-73, 125 S.Ct. 2410 (quoting Hernandez v. New York , 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ). Although it is not clear from the opinion that preservation was raised as an issue in the case, what is clear is that the Supreme Court envisioned the first two steps of the Batson procedure as the steps involving the production of evidence in order for the trial court to conduct a proper analysis in the third step. It seems implicit in the Supreme Court's reasoning that if a specific preservation objection is required, then it would have addressed the issue of Johnson's failure to object and secure a ruling as to Step 2, and conclude the Batson challenge was properly denied by the trial court.

In Foster , the Supreme Court granted certiorari review of a Georgia death penalty conviction and sentence. Foster , 136 S.Ct. at 1743. There, the state exercised nine of its ten allotted peremptory strikes, removing four black prospective jurors. Id. Foster immediately lodged a Batson objection, which was rejected by the trial court. Id. After the judgment and sentence was upheld by the Georgia Supreme Court, Foster sought habeas relief in state court. Id. During the state court habeas proceedings, Foster obtained a series of documents from the prosecution files, clearly suggesting the prosecutor's office used race in evaluating which prospective black jurors would be subject to a preemptory strike. Id. at 1744-45. The state court denied habeas relief based on res judicata . Id. at 1745.

Because both sides conceded that Steps 1 and 2 of Batson had been met, the Supreme Court addressed only Step 3. Id. at 1747. Foster focused his Batson claim on two prospective jurors, for whom the state proffered multiple reasons during trial for the strike as to both. Id. at 1748. As to one of the stricken prospective jurors, for whom the state offered eleven reasons for the strike, the Court noted that the trial court accepted the state's justifications, concluding that " '[i]n the totality of circumstances,' there was 'no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons' for the strike." Id. at 1748-49 (alteration in original). However, based on the Court's independent examination of the record, it concluded that much of the reasoning provided by the state "ha[d] no grounding in fact." Id. at 1749.

As to the second prospective juror, for whom the state proffered eight reasons for the strike, the Court noted that the state's reasons for the strike were inconsistent before the trial court, focusing its argument on only one concern, and the state's justification for the strike shifted over time in the post-trial proceedings. Id. at 1751-52. The Court also observed that many of the state's justifications "come undone when subjected to scrutiny." Id. at 1753. Additionally, as to both stricken prospective jurors, the Court noted that many of the proffered reasons applied to white prospective jurors, for whom the state did not exercise a strike. Id. at 1750. Thus, the Supreme Court reversed the conviction and remanded the case for further proceedings. Id. at 1755.

What is instructive about Foster is that the Supreme Court determined there was a Batson violation on proffered reasons for a preemptory strike that "[came] undone" after an extensive review of the record. If objections were made discussing any details regarding the proffered explanations, it is likely the Court would have discussed the objections or alluded to them. Because there is no discussion of such points, it appears the United States Supreme Court does not impose a specific objection in order to conduct an appellate review of the trial court's compliance with Batson .

The Dissent's Analysis

The dissent cites ten cases in support of its contention that Melbourne does not always require three steps, but does require a specific objection to preserve a claim of pretext. However, four of the cases were decided before Purkett . Prior to Purkett , the contention that Batson requires three steps was only approved by the plurality opinion in Hernandez . Additionally, in Hernandez , the Court said "[o]nce a prosecutor has offered a race-neutral explanation for peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing of intentional discrimination becomes moot." Hernandez , 500 U.S. at 359, 111 S.Ct. 1859. As discussed below, that language was erroneously interpreted to mean that once a trial court rules on a Batson objection, even without determining if the proffered reasons are genuine, the prima facie showing of intentional discrimination becomes moot.

The case which appears to be the strongest support for the dissent's position is Davis v. Baltimore Gas & Electric Company , 160 F.3d 1023 (4th Cir. 1998), in which the Fourth Circuit said: "The court has no obligation to guide the movant, step-by-step, through the requirements of his own objection." Id. at 1028. However, Davis does not mention Purkett at all, and instead, misapplied Hernandez , which also predated Purkett . Id. at 1026-27.

Immediately after stating the quote from Hernandez discussed above, the Fourth Circuit said:

Fourth Circuit law endorses the Supreme Court's holding in Hernandez . Prior to the Court's pronouncement in Hernandez , the Fourth Circuit held that when racially neutral reasons are proffered, it is unnecessary to determine whether a prima facie case was actually demonstrated. So, since Defendant volunteered racially neutral reasons for its strikes, the prima facie determination is moot.

Davis , 160 F.3d at 1027 (internal citations omitted). In other words, the Fourth Circuit completely ignored Step 3 discussed in Hernandez (which Purkett amplified further) to conclude that a racially neutral proffered explanation ends the Batson inquiry.

The remainder of the cases cited by the dissent are also unpersuasive, because in those cases, either the trial court gave the opponent of the strike the opportunity to respond, or at least, there is not enough information to determine whether the trial court did, or the cases do not rely on Purkett and rely on pre- Purkett cases.

The dissent voices a legitimate concern that "the goal has become the process." Justice O'Connor may have expressed the fear best when she observed that by "constitutionalizing jury selection procedures ... jury selection-once a sideshow-will become the main event." 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). Nonetheless, it must be remembered that the procedure espoused by Batson by a majority of the Supreme Court and adopted in Melbourne "was designed 'to serve multiple ends,' only one of which was to protect individual defendants from discrimination in the selection of jurors ." Georgia v. McCollum , 505 U.S. 42, 48, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (emphasis added) (quoting Powers v. Ohio , 499 U.S. 400, 406, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ). As can be seen from the Supreme Court's application of Batson , much more is involved than a concern about Equal Protection under the Constitution. Batson not only preserves Equal Protection, but also Due Process, and the Sixth Amendment right to a trial by a fair jury.

In Powers , the Supreme Court addressed the issue of whether Batson applied when a white defendant sought to challenge the state's use of peremptory challenges to exclude black potential jurors. 499 U.S. at 403, 111 S.Ct. 1364. In the first paragraph of the opinion, the Court said:

In the many times we have confronted the issue since those cases [referring to three cases construing the Civil Rights Act of 1875], we have not questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts .

Id. at 402, 111 S.Ct. 1364 (emphases added). The majority in Powers went on to say: "Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people." Id. at 407, 111 S.Ct. 1364. The majority concluded that " Batson recognized that a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large ." Id. at 406, 111 S.Ct. 1364 (emphases added). The notion that Batson was intended to avoid "offend[ing] ... the integrity of the courts" and "harm" to "the community at large" was grounded upon the following statement in Batson :

The petit jury has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge.

Batson , 476 U.S. at 86, 106 S.Ct. 1712 (citing Duncan v. Louisiana , 391 U.S. 145, 156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ), and in a footnote, where the Court said:

In Duncan v. Louisiana ... the Court concluded that the right to trial by jury in criminal cases was such a fundamental feature of the American system of justice that it was protected against state action by the Due Process Clause of the Fourteenth Amendment. The Court emphasized that a defendant's right to be tried by a jury of his peers is designed "to prevent oppression by the Government." For a jury to perform its intended function as a check on official power, it must be a body drawn from the community. By compromising the representative quality of the jury, discriminatory selection procedures make "juries ready weapons for officials to oppress those accused individuals who by chance are numbered among unpopular or inarticulate minorities."

Id. n.8 (internal citations omitted).

In McCollum , the Supreme Court addressed the issue of whether the Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges. 505 U.S. at 44, 112 S.Ct. 2348. There, three white defendants were charged with aggravated assault and simple battery against two black victims. Id. In holding that the Constitution prohibits criminal defendants from using race for a peremptory challenge, the Supreme Court again relied on the premise that Batson was designed to serve "multiple ends," including protecting the "integrity of the courts." Id. at 48, 112 S.Ct. 2348. As part of the rationale for its holding, the Court said:

"[B]e it at the hands of the State or the defense," if a court allows jurors to be excluded because of group bias, "[it] is [a] willing participant in a scheme that could only undermine the very foundation of our system of justice-our citizens' confidence in it. Just as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquittal.

Id. at 49-50, 112 S.Ct. 2348 (alterations in original) (internal citation omitted).

Finally, we disagree with the dissent's contention, agreeing with the Second District and the concurring opinion in Spencer II , that Hayes and the plurality opinion in Spencer II cast the trial judge as an advocate by imposing a duty to ask the opponent of a peremptory strike to respond to the proffered explanation for the strike. Although a trial court judge must be impartial, "[t]his fundamental precept does not foreclose a trial judge from asking questions to ascertain the truth or to clarify issues." Gerali v. State , 50 So.3d 727, 729 (Fla. 5th DCA 2010). It is not uncommon for trial court or appellate judges to ask questions of an advocate to test the strength of an argument. Judges are trained in the skills of neutrality, and we are confident that trial courts can engage in conducting a factual determination without becoming advocates, if questioning is needed to make a factual determination of pretext.

The "multiple ends" the Batson - Melbourne procedure was designed to achieve should not be thwarted by the preservation requirements the dissent seeks to impose. It is reasonable and appropriate to impose some duty on the trial court to accomplish the "multiple ends."

Applying the Melbourne Procedure to This Case

In the instant case, we conclude the cold record is devoid of any indication that the trial court considered circumstances relevant to whether the peremptory challenge was exercised for a discriminatory purpose. Unlike Spencer II , it is clear that the trial court did not request a response by Defendant to the explanation proffered by the State for the peremptory challenge. Instead, the trial court cut off the State while it was proffering its explanation for the strike and justification for its genuineness, and brought the analysis to an end with the statement, "All right. Okay. I find that to be race-neutral reason. I'm going to uphold State's use of a peremptory on [Juror No. 10 ]." On the record presented, we simply cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. See Landis v. State , 143 So.3d 974, 978 (Fla. 4th DCA 2014) ("If the record lacks any indication that the trial court considered the totality of the 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 and give deference to the trial court.").

The State asks us to infer that the trial court complied with Step 3 because it pointed out to the trial court, in providing its race-neutral reason for striking Juror No. 10, that the defense had stricken two black females in the defense's first round of strikes, after the State had twice accepted the jury panel with those jurors. The State contends that the record reflects the trial court was aware of and considered the circumstances relevant to determining if the strike was improperly discriminatory and implicitly found there was no pretext in the strike. We decline the invitation because the trial court cut off the State before it could point out that it had twice accepted the jury panel with those jurors when it exercised two peremptory challenges. We are satisfied that once the trial court decided the explanation was race neutral, it determined no further analysis was needed. In other words, the trial court prematurely curtailed the procedure.

Because the trial court failed to comply with the duty imposed by Step 3 of the Melbourne procedure, we reverse the conviction and sentence, and remand the case for a new trial as to the robbery counts in Case No. 14013212CF10A. The violation of probation proceedings in the other two cases were tried without a jury, thus the error regarding jury selection does not affect the adjudication that Defendant violated probation in those cases. We affirm the adjudications and sentences imposed in Case Nos. 13011816CF10A and 13012248CF10A.

We further determine that our opinion in this case regarding the procedure for a Melbourne challenge conflicts with the opinions in Brown v. State , 204 So.3d 546 (Fla. 5th DCA 2016), Ivy v. State , 196 So.3d 394 (Fla. 2d DCA 2016), and Hanna v. State , 194 So.3d 424 (Fla. 3d DCA 2016), because those cases continue to adhere to the analysis of the Second District in Spencer I . Thus, we certify conflict with those decisions.

Reversed and remand for further proceedings.

Warner, J., concurs.

Kuntz, J., dissents with opinion.

Kuntz, J., dissenting.

After the State used a peremptory challenge on Juror No. 10, counsel for the Defendant stated, "Your Honor, may I -- For the record, my client is a member of the African American class and we want-, pursuant to Melbourne vs. State , the State to offer a race neutral reason for" the strike. The State responded, stating that Juror No. 10"indicated he would prefer 'CSI evidence.' Additionally, the Defense has stricken two black females in the first round of strikes. They've also stricken black individuals for cause." Both the Defendant and defense counsel remained quiet before and after the court stated, "All right. Okay. I find that to be a race-neutral reason. I'm going to uphold the State's use of a peremptory on [Juror No. 10 ]."

The State's stated reason was true. During voir dire, when asked whether he could convict a defendant without DNA evidence, Juror No. 10 stated, "[I]t depends on the case." While his answer was more nuanced than a simple preference for DNA evidence, the Defendant did not challenge the reason offered by the State. I would conclude the Defendant's silence in response to the State's facially sound reason for striking Juror No. 10 constituted a waiver of the challenge. I would affirm the conviction and respectfully dissent.

The ultimate issue here is whether a party must raise an issue to the trial court; or, alternatively, whether a party can sit silently and require the trial court to advocate on his or her behalf. The issue relates to the multi-step process for challenging the use of a peremptory challenge.

In 1986, the United States Supreme Court examined "the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit jury." Batson v. Kentucky , 476 U.S. 79, 82, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson and its progeny have established a three-part test to determine whether a party grounded its use of a peremptory strike in a racially discriminatory manner. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " Johnson v. California , 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (quoting Batson , 476 U.S. at 93-94, 106 S.Ct. 1712 ). Second, if the defendant makes a prima facie case, "the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes." Id. (quoting Batson , 476 U.S. at 94, 106 S.Ct. 1712 ). Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem , 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

Even before Batson , our state supreme court had established a procedure aimed at preventing racially motivated peremptory challenges. See, e.g. , State v. Neil , 457 So.2d 481 (Fla. 1984), later clarified in State v. Johans , 613 So.2d 1319 (Fla. 1993) and State v. Slappy , 522 So.2d 18 (Fla. 1988). Because of difficulty applying those decisions, and because of Batson and Purkett , the court resolved to address the issue again in Melbourne v. State , 679 So.2d 759 (Fla. 1996), explaining each step of the three-step process:

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. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the 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.

Id. at 764 (footnote omitted).

In my opinion, and based on the foregoing case law, a party challenging the use of the other's peremptory strike must object during the Batson - Melbourne analysis at each of the three steps to preserve the objection. The majority disagrees.

In support of its contrary conclusion, the majority discusses our supreme court's plurality opinion in Spencer v. State , 238 So.3d 708 (Fla. 2018). In Spencer , the defendant raised a Melbourne challenge to the state's use of a peremptory strike. Id. at 716. The court asked the state to provide a nondiscriminatory basis for the strike to which the state complied. Id. At that time, the court informed counsel for the defendant that "you may respond" and counsel stated, "I have no response." Id.

While all seven justices agreed that the defendant's conviction should be affirmed, no rationale garnered the support of a majority of justices. Three justices signed the plurality opinion authored by Justice Quince; two concurred in result without a written opinion; and two concurred with an opinion. The plurality held the defendant waived his challenge to the strike when he failed to respond to the court's invitation. Id. at 717 ("Because the burden of persuasion was on defense counsel, as the opponent of the strike, and defense counsel did not respond, the trial court properly overruled the objections."). Generally, the plurality relied on Hayes v. State , 94 So.3d 452, 460-61 (Fla. 2012), stating that "[w]hile we were not abandoning requirements for full preservation in Hayes , Hayes provides that the trial court has a duty to perform the correct legal analysis independent of trial counsel's duty." Spencer , 238 So.3d at 716 (internal quotation omitted).

Justice Lawson wrote the concurring opinion, joined by Justice Canady, and explained that long before Hayes , the court addressed the issue in Floyd v. State , 569 So.2d 1225 (Fla. 1990). Spencer , 238 So.3d at 718-19 (Lawson, J., concurring). In Floyd , the court held that "[o]nce the state has proffered a facially race-neutral reason, a defendant must place the court on notice that he or she contests the factual existence of the reason." Id. (quoting Floyd , 569 So.2d at 1229 ). Justice Lawson explained that the contrary language in Hayes , issued twenty-two years after Floyd , is mere dicta. Id. at 720-21 ("[T]here is no practical way for the opponent of the strike to meet his or her burden of persuasion without challenging the facially race-neutral reason as a pretext."). In other words, when a defendant remains silent after step 2, he cannot meet his burden of persuasion in challenging step 3.

The majority here agrees with the Spencer plurality and states that "in this District we contend there arguably is no conflict between Hayes and Floyd ." Op. 736. The majority states that " Melbourne imposes some procedural requirements as a duty on trial courts that do not require objections at each step to preserve the matter for appellate review; however, with regards to factual accuracy of assertions by the proponent of a peremptory strike, the standard preservation requirements apply." Op. 736-37 (emphasis removed). Thus, the majority "conclude[s] that at a minimum, Melbourne imposes a duty on trial courts at Step 3 to request a response to the proffered explanation from the opponent of a peremptory challenge once Step 2 has been completed." Op. 737.

The majority cites several cases from this Court in support of its conclusion. See R.J. Reynolds Tobacco Co. v. Enochs , 226 So.3d 872, 874 (Fla. 4th DCA 2017) ; West v. State , 168 So.3d 1282, 1285 (Fla. 4th DCA 2015) ; Denis v. State , 137 So.3d 583, 586 (Fla. 4th DCA 2014) ; Burgess v. State , 117 So.3d 889, 891 (Fla. 4th DCA 2013) ; King v. State , 106 So.3d 966, 968 (Fla. 4th DCA 2013) ; Victor v. State , 126 So.3d 1171, 1172 (Fla. 4th DCA 2012) ; Cook v. State , 104 So.3d 1187, 1190 (Fla. 4th DCA 2012). But none of these cases involved a situation in which counsel for the defendant failed to challenge the race-neutral reason.

In Denis , we explained that "after the state proffered its race-neutral reason for the strike-that the juror had fallen asleep during voir dire-defense counsel contested the factual basis of the state's reason by informing the court that defense counsel did not see the juror fall asleep and asking the court to address whether it witnessed this behavior." 137 So.3d at 585. Similarly, in West , after the state responded that its race-neutral reason for using the peremptory strike was that the juror was unemployed, counsel for the defendant objected. 168 So.3d at 1283. The defendant's counsel stated that "[s]he said she's a housekeeper for a retirement home. Her husband was the one that was unemployed-no, I'm sorry, her kids are unemployed, but she's a housekeeper for a retirement home." Id.

In King , another cited case, we explained that "the State sought to exercise peremptory strikes as to three African-American jurors. On each occasion, the defense objected and sought a race-neutral reason. And, on each occasion, the defense took issue with the reasons offered by the prosecutor in support of the strike." 106 So.3d at 968. The defendant also objected to the state's race-neutral reason in Victor , where we stated that in response to the state's proffered reason "[d]efense counsel noted that the State had not moved to strike other members on the panel who were also arrested." 126 So.3d at 1173. The same occurred in Cook . After the state provided as a race neutral reason that the juror was "hesitant in answering" and "seemed distracted," counsel for the defendant immediately objected, stating "I don't think his being slow to answer questions would have anything to do with his qualification to be a juror on the case." Cook , 104 So.3d at 1188.

On its face, Burgess presents a closer case. But there we specifically noted that the "defendant also pointed out the state's pattern of challenging black jurors." Burgess , 117 So.3d at 891. The opinion also states that the defendant "alleged purposeful discrimination." Id. A review of the transcript of the hearing at issue, available from the St. Lucie County Clerk of Court, shows the defendant's objection to the state's proffered race-neutral reason was specific. The defendant's attorney stated that "the State is striking every African-American female so far. So I do think that that should be taken a look at when - when the State is saying that the reason for the strike is simply because these are in the profession of being a nurse." Counsel for the defendant specifically asserted that, "the court ought to be concerned with what the true motivations are."

These cases do not support reversal here. Unlike the cases discussed above, the Defendant here did not object to the State's proffered race-neutral reason. Instead, he remained silent. I find similarity between the facts here and R.J. Reynolds -another case cited by the majority. Two peremptory challenges were at issue there, though the colloquy about the first is relevant here:

[PLAINTIFF]: He's a white male. I don't understand what -
[COURT]: Everybody is a protected class under the case law.
[PLAINTIFF]: Okay. Well, he's a smoker, and that's why I'm striking him, he's a smoker.
[COURT]: All right. That's a gender-and-race-neutral reason. I will overrule defense objection.

R.J. Reynolds , 226 So.3d at 873. I see little difference between the colloquy in R.J. Reynolds and the colloquy here. Yet we affirmed the court's decision in R.J. Reynolds , and allowed the strike based on the "overall record." Id. at 874.

All but one of the cases relied on by the majority are distinguishable; and, as for R.J. Reynolds , that case supports affirmance here. Yet the majority cites them and then imposes a new obligation on our trial judges to act as an advocate. Doing so does not serve the purpose of eradicating racial discrimination from the jury selection process. Instead, it eliminates the possibility that a party might accept the race-neutral reason proffered by the other party.

Justice Marshall's concurring opinion in Batson offered a prophetic prediction: "Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge." 476 U.S. at 105, 106 S.Ct. 1712 (Marshall, J., concurring). He recognized that when a defendant established a prima facie case, "trial courts face the difficult burden of assessing prosecutors' motives" and that burden is one trial courts are "ill-equipped" to handle. Id. at 105-06, 106 S.Ct. 1712.

Twenty years later, Justice Breyer concluded that "history has proved Justice Marshall right." Rice v. Collins , 546 U.S. 333, 342-43, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (Breyer, J., concurring). And Justice Marshall is not alone. Justice O'Connor has commented that "[i]n further constitutionalizing jury selection procedures, the Court increases the number of cases in which jury selection-once a sideshow-will become part of the main event." 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). My colleague, Judge Klingensmith, has opined that the "ensuing progression of the current case law has resulted in the death of the peremptory challenge by a thousand cuts." Jones v. State , 229 So.3d 834, 837 (Fla. 4th DCA 2017) (Klingensmith, J., concurring).

The decision of the majority is yet another cut-one that further separates the procedure carried out in the trial courts from the purpose explicitly stated in Batson and Melbourne . In this district, we will now presume that the defendant rejects the state's stated nondiscriminatory basis for the strike. The Melbourne inquiry moves further from the goal of eliminating discrimination. Instead, the goal has become the process; the sideshow becoming part of the main event. Consistent with the concurring opinion of Justice Lawson in Spencer , we should require a party to raise an objection at every step of the Batson - Melbourne test.

This would also track many other jurisdictions that have addressed this issue. The Tenth Circuit has "refuse[d] to transform [the defendant's] inadequate effort to respond to the government into an error by the district court." United States v. Vann , 776 F.3d 746, 755 (10th Cir. 2015) ("Logically construed, the best way to interpret this series of events is that [the defendant] failed to carry his burden of persuasion to demonstrate to the district court that the prosecutor's use of a peremptory strike amounted to purposeful discrimination.").

Similarly, the Fifth Circuit has held that a party "waived his Batson claim, however, by failing to rebut the county's reasons for striking Juror Number Eight at the time he raised his claim." Wright v. Harris Cty. , 536 F.3d 436, 438 (5th Cir. 2008) ; see also United States v. Arce , 997 F.2d 1123, 1126-27 (5th Cir. 1993) ("Because this reason was not facially race-related and the defense did not dispute that explanation, the district court had no need to rule on its validity.").

The same is true in the Fourth Circuit, which has held "that Plaintiff waived his Batson challenge by failing to pursue his objection once Defendant offered a legitimate, nondiscriminatory explanation." Davis v. Balt. Gas & Elec. Co. , 160 F.3d 1023, 1028 (4th Cir. 1998). The Second Circuit reached the same result. United States v. Rudas , 905 F.2d 38, 41 (2d Cir. 1990) ("Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim. Here defense counsel did nothing.").

In the Sixth Circuit, "[i]f a defendant fails to rebut a race-neutral explanation at the time it was made, the district court's ruling on the objection is reviewed for plain error, and the movant in this setting is in no position to register a procedural complaint that the district court failed to give a specific reason on the record for accepting the government's race-neutral explanation. A movant's failure to argue pretext may even constitute waiver of his initial Batson objection." United States v. Jackson , 347 F.3d 598, 605 (6th Cir. 2003) (internal citation omitted).

The Eighth Circuit has also addressed the specific issue presented here. Hopson v. Fredericksen , 961 F.2d 1374, 1377-78 (8th Cir. 1992). That court held that the failure of counsel "to follow up on his Batson objection could have been reasonably construed by the trial judge as an agreement that the expressed reasons were racially neutral." Id. ; see also United States v. Bennett , 928 F.2d 1548, 1550 n.1 (11th Cir. 1991) ("In the instant case, however, the defendant's attorney did not allege that the government's explanation was pretextual at the time the government made its explanation for the strikes."), superseded by statute on other grounds as stated in United States v. Smith , 127 F.3d 1388, 1389-90 (11th Cir. 1997).

A few states follow suit. See Adair v. State , 336 S.W.3d 680, 689-90 (Tex.App. 2010) (determining a defendant failed to meet his burden when he did not try to rebut the race-neutral reason provided by the prosecutor); People v. Alvarado , 306 A.D.2d 18, 759 N.Y.S.2d 659, 660 (2003) ("With regard to the other three panelists at issue, by failing, at step three of the Batson application, to raise any arguments as to why the prosecutor's facially race-neutral explanations for his peremptory challenges were pretextual, defendant failed to preserve his present claims."); State v. Washington , 288 S.W.3d 312, 317 (Mo. Ct. App. 2009) (quoting State v. Taylor , 944 S.W.2d 925, 934 (Mo. 1997) ) ("A defendant's failure to challenge the State's race-neutral explanation in any way waives any future complaint that the State's reasons were racially motivated, and leaves nothing for this Court to review.").

These courts concluded as they did for the same reason courts require preservation in any other instance. A trial court should not pursue arguments on behalf of a party. Instead, a party must present an argument to the court and, when presented, the court must determine the issue. There is no reason to blur this established line between the role of the court and those who appear before it.

The majority notes that four of these opinions predate the Supreme Court's decision in Purkett , and also states that the defendant's response to the state's race-neutral reason is unclear in Purkett . But we do know the defendant's response. On remand from the Supreme Court, the Eighth Circuit explained that defense counsel sought to question the prospective jurors in response to the state's assertion. Elem v. Purkett , 64 F.3d 1195, 1199 (8th Cir. 1995). In any event, the courts that issued those four opinions consider the opinions to be good law. See, e.g. , United States v. Sanders , 470 F. App'x 380 (5th Cir. 2012) ("By failing to dispute the Government's explanations, Sanders appeared to acquiesce in them."); United States v. Whitfield , 314 F. App'x 554, 556 (4th Cir. 2008) ("The failure to argue pretext after the challenged strike has been explained constitutes a waiver of the initial Batson objection."); see also Lee v. Comm'r, Ala. Dep't of Corr. , 726 F.3d 1172, 1230 (11th Cir. 2013) (Tjoflat, J., concurring) (citing Davis , 160 F.3d at 1027 ; Hopson , 961 F.2d at 1377 ; Rudas , 905 F.2d at 41 ) ("Three of our sister circuits have answered this question. If, after the State has come forth with non-discriminatory reasons for exercising the peremptory challenges at issue the defendant stands silent, the defendant waives his Batson objection; he may not resurrect it on appeal.").

Here, the Defendant asked that the State "offer a race-neutral reason for" the strike. In response, the State came forward with a neutral explanation for striking the juror. The Defendant did not challenge that reason. "[W]hen the state asserts a fact as existing in the record, the trial court cannot be faulted for assuming it is so when defense counsel is silent and the assertion remains unchallenged. Once the state has proffered a facially race-neutral reason, a defendant must place the court on notice that he or she contests the factual existence of the reason." Floyd , 569 So.2d at 1229. That is what occurred here, and Floyd should control our disposition.

I would affirm the Defendant's conviction.

      Melbourne v. State , 679 So.2d 759 (Fla. 1996)

      "CSI" refers to the television show Crime Scene Investigation.

      In Melbourne , the Court stated that State v. Neil , 457 So.2d 481 (Fla. 1984) was "[a] seminal Florida case ... wherein this Court set out a procedure for dealing with racially-motivated peremptory challenges." Melbourne , 679 So.2d at 763 (emphasis added).

      State v. Neil , 457 So.2d 481 (Fla. 1984) ; State v. Slappy , 522 So.2d 18 (Fla. 1988).

      In chronological order, the cases discussed were: Neil ; Batson ; Slappy ; Floyd ; Joiner ; Purkett ; Melbourne ; Rodriguez v. State , 753 So.2d 29 (Fla. 2000) ; and Dorsey v. State , 868 So.2d 1192 (Fla. 2003).

      Richardson v. State , 246 So.2d 771 (Fla. 1971).

      The dissent points out that these cases do not involve "a situation in which counsel for the defendant failed to challenge the race-neutral reason." However, the cases are cited as support for the quote and not to specifically negate the premise that Melbourne requires three steps only if the opponent of the strike continually makes specific objections about the procedure.

      However, the Second District's opinion could also be read to mean that compliance with Step 2 is not mandatory unless requested.

      The four cases are: United States v. Arce , 997 F.2d 1123 (5th Cir. 1993) ; Hopson v. Fredericksen , 961 F.2d 1374 (8th Cir. 1992) ; United States v. Bennett , 928 F.2d 1548 (11th Cir. 1991) ; and United States v. Rudas , 905 F.2d 38 (2d Cir. 1990).
      Arce is not helpful to the analysis because it relies on Rudas , which is discussed below. 997 F.2d at 1127.
      Hopson is not helpful to the analysis because the issue was the failure of the judge to articulate the reason for overruling the Batson objection. 961 F.2d at 1377-78. Neither the United States Supreme Court nor the Florida Supreme Court has ever imposed such a requirement.
      In Bennett , the Fifth Circuit held that "the government's articulated reasons are not pretextual as a matter of law . Opportunity to rebut the government's reasons would therefore have been to no avail. Consequently, we need not address Bennett's secondary argument [that the trial court failed to allow Bennett to rebut the explanation] at this juncture." Bennett , 928 F.2d at 1550 n.1. Clearly, the theory of waiver approved by the Fifth Circuit is questionable, given its conclusion that articulated reasons are not pretextual as a matter of law.
      The problem with Rudas is that the Second Circuit asserted that "[o]nce the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim," with no citation of authority . 905 F.2d at 41.

      United States v. Vann , 776 F.3d 746 (10th Cir. 2015) ; State v. Washington , 288 S.W.3d 312 (Mo. Ct. App. 2009) ; Adair v. State , 336 S.W.3d 680 (Tex.App. 2010).

      Wright v. Harris Cty. , 536 F.3d 436 (5th Cir. 2008) ; People v. Alvarado , 306 A.D.2d 18, 759 N.Y.S.2d 659 (2003).

      Wright , 536 F.3d at 436 ; United States v. Jackson , 347 F.3d 598 (6th Cir. 2003).


source: Caselaw Access Project

author: Conner, J.

license: Public Domain

text:
    Willie SOL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1312
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Willie Sol appeals his sentence after entering an open plea to burglary of a structure, grand theft, and possession of burglary tools. Sol asserts four issues of trial court error, one of which the State concedes. Because three of the issues raised by Sol are without merit, we affirm the trial court's ruling as to those issues without discussion. As to the fourth issue, we agree with Sol and the State that we should remand for correction of Sol's sentence on the burglary charge.

The trial court sentenced Sol as a habitual felony offender on the burglary count, but did "not believe that it is necessary for the protection of the public to sentence [Sol] to an enhanced sentence." However, the written sentencing order for the burglary count stated that:

The Defendant is adjudicated a habitual felony offender and has been sentenced to an extended term in accordance with the provisions of section 775.084(4)(a), Florida Statutes. The requisite findings by the Court are set forth in a separate order or stated on the record in Open Court.

(emphasis added).

Section 775.084, Florida Statutes, states that a "habitual felony offender" is "a defendant for whom the court may impose an extended term of imprisonment." § 775.084(1)(a), Fla. Stat. (2015) (emphasis added). Section 775.084 also states that 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 ." § 775.084(3)(a) 6., Fla. Stat. (2015) (emphases added).

"Any difference between the trial court's oral pronouncement and its written order is resolved in favor of the oral pronouncement." Harder v. State , 14 So.3d 1291, 1293 (Fla. 1st DCA 2009). Therefore, as the State agrees, the case is remanded for the trial court to correct the error in the written sentence and delete the language for an enhanced sentence as a habitual felony offender. We agree with the State that Sol's presence is not necessary to correct this scrivener's error. See Frost v. State , 769 So.2d 443, 444 (Fla. 1st DCA 2000) ("Accordingly, this case is remanded with instructions for the written sentence to be conformed to the oral pronouncement. Upon remand, appellant need not be present for the correction of the sentence since correction is merely a ministerial act.").

Affirmed and remanded with instructions.

Taylor and Kuntz, JJ., concur.


author: Klingensmith, J.

text:
    Rodney CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3166
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Rodney Clark was convicted of first-degree murder in a case that went cold for a quarter century. Clark raises several issues on appeal, and we affirm without comment on all but one. Clark asserts that the trial court erred in admitting a latent fingerprint card into evidence over his objection, and in allowing a witness who did not create the card to read from it during trial. For the reasons stated below, we find no error in the trial court's rulings and affirm Clark's conviction.

In 1987, Dana Fader was found dead in her vehicle where someone strangled her with a rope until she died from asphyxiation. As the authorities investigated and collected evidence at the crime scene, Detective Michael Waites observed a latent fingerprint on Fader's passenger-side rear window. The lead crime scene investigator Sergeant Robert Cook lifted the print from the window and compiled a fingerprint card. In addition to the print itself, Sergeant Cook wrote other notations on the card, including the date, case number, victim's name, and the location on the vehicle where the print was lifted.

Fader's murder went unsolved for twenty-five years-until the authorities tested DNA obtained from a substance on her dress, and the results generated a match with Clark's DNA profile, which led to his arrest.

In August of 2017-approximately thirty years after the murder-Clark's case proceeded to trial. In the intervening years, Sergeant Cook passed away. Because of his unavailability, the State offered the testimony of several other witnesses in his absence. Detective Waites testified to the contents of the latent print card and how such evidence was collected. Over objection, the trial court admitted the latent print card into evidence. Another witness, latent print examiner Gary Mosely, testified that he was assigned to the case in 2006, and discussed the general process of examining latent prints. During his testimony, the trial court permitted Mosely to refer to notations on the back of the card written by Sergeant Cook, which indicated that the print was lifted from the outside of the passenger-side rear window of Fader's vehicle.

Defense counsel then filed a motion to strike and to declare a mistrial. She argued, among other things, that the latent print card (and other items collected by Sergeant Cook) was inadmissible on grounds of improper foundation, chain of custody, relevance, hearsay, and violation of the Confrontation Clause. These motions were denied. Clark was found guilty of the murder and sentenced to life in prison. This appeal followed.

"The standard of review for admissibility of evidence is abuse of discretion." Nardone v. State , 798 So.2d 870, 874 (Fla. 4th DCA 2001). "However, a trial court's discretion is limited by the rules of evidence." Id.

"Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." Symonette v. State , 100 So.3d 180, 183 (Fla. 4th DCA 2012) (quoting Jackson v. State , 979 So.2d 1153, 1154 (Fla. 5th DCA 2008) ). "Unless clearly erroneous, the trial court's determination will be sustained." Daniels v. State , 634 So.2d 187, 192 (Fla. 3d DCA 1994). Here, the State laid a sufficient predicate through the testimony of Detective Waites and print examiner Mosely to support that the latent prints were what they were purported to be. See Mack v. State , 106 So.3d 1011, 1012 (Fla. 3d DCA 2013) (no error where the State authenticated and linked latent fingerprint evidence to the case through the testimony of an expert fingerprint witness, but not the actual detective who lifted the prints at the crime scene). Additionally, there was no evidence of tampering or any break in the chain of custody. Therefore, the court did not abuse its discretion in allowing the prints into evidence. See id.

The trial court also did not abuse its discretion in ruling that the latent print card was relevant. Detective Waites testified he saw a latent print on Fader's vehicle and alerted Sergeant Cook to its existence. Even if the notation about where this print was lifted from the vehicle was redacted, as the defense requested, the other notations on the card, along with the print itself, tended to establish its relevance to the instant case. Because broad discretion rests with the trial court in determining whether evidence is relevant, we will not overturn such rulings absent a clear abuse of discretion. See Poole v. State , 151 So.3d 402, 414 (Fla. 2014).

We do not reach the issue of whether admission of the identifying information on the fingerprint card (the victim's name, the crime date, and the location of the print) was error under either the business records exception to the hearsay rule in section 90.803(6), Florida Statutes (2017), or the Confrontation Clause. Any such errors, if preserved, are subject to a harmless error analysis. See Corona v. State , 64 So.3d 1232, 1241 (Fla. 2011). A harmless error analysis requires this court to "determine whether 'there is a reasonable possibility that the error affected the verdict.' " Id. at 1243 (quoting State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986) ). The burden to show that the error was harmless is on the State. See id. "If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful." DiGuilio, 491 So.2d at 1139.

Based on the totality of the circumstances in this case, we are persuaded beyond a reasonable doubt that the admission of the fingerprint card information did not affect the jury's verdict. Detective Waites testified from his firsthand knowledge about the victim's name, the date of the investigation, and the location of the print due to his presence at the crime scene in 1987. Accordingly, any error in admitting the card or its notations into evidence had no reasonable possibility of affecting the verdict and was therefore harmless given the other evidence presented at trial. See Barnes v. State , 29 So.3d 1010, 1027-28 (Fla. 2010) ; DiGuilio , 491 So.2d at 1135.

We, therefore, affirm on all issues.

Affirmed.

Gerber, C.J., and Forst J., concur.


author: Warner, J.

text:
    Wesley PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3469
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant appeals his sentence and the denial of his motion to correct a sentencing scoresheet error, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(1). He claims that his original scoresheet was incorrect, leading to a greater sentence, which error was not corrected on resentencing. Because of the original scoresheet error, appellant also sought resentencing for a conviction which was not ordered to be resentenced by this court in his prior appeal. We affirm the resentencing and denial of the motion to correct sentencing error, as the court was provided the corrected sentencing scoresheet when determining appellant's sentences on the convictions that were challenged and reversed on appeal. As to the undisturbed conviction and sentence, it was not part of the resentencing, and the motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(1) did not apply to that sentence.

In four separate cases, appellant, Wesley Paul, was charged with multiple counts of organized fraud, grand theft, fraudulent use of personal identification information, and structuring currency transactions to evade reporting or registration requirements. All of these counts are either second or third degree felonies, except for one first degree felony count. Appellant entered an open plea as to all four cases, and in exchange, the State filed a nolle prosequi of many of the charges against him.

In June 2012, the court held a sentencing hearing. For appellant's remaining second degree felony charges, his counsel moved for a downward departure sentence. Appellant's crimes involved identity theft and telemarketing timeshare resales, and there were about ninety-seven victims, many of whom were elderly. The court denied appellant's request for a downward departure sentence. Appellant's lowest permissible sentence on the sentencing scoresheet was 138.45 months. The court sentenced him to 140 months in prison (11.67 years) followed by ten years of probation, to be served concurrently for all of the counts, including the first degree felony.

Appellant filed a Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence in 2014, contending that the second degree felony sentences were illegal as the combined prison and probation time exceeded the statutory maximum of fifteen years for a second degree felony. The trial court denied the motion, and Paul appealed.

In Paul v. State , 195 So.3d 420, 421 (Fla. 4th DCA 2016), this court reversed, as the State conceded that his sentence on the second degree felonies did exceed the statutory maximum. In our opinion, we ordered resentencing as to those convictions but specifically noted that the opinion did not disturb the first degree felony sentence.

The court held a resentencing hearing in April 2017, at which appellant was represented by counsel. At the very beginning of the hearing, counsel informed the court that the original scoresheet contained an error which would affect sentencing for all convictions, including the first degree felony. Appellant had wrongfully been scored for four grand theft convictions in Collier County, when there was actually only one conviction. Defense counsel informed the court that the prosecutor had prepared a new corrected scoresheet which reflected a lowest permissible sentence of 118 months. Counsel requested the court to consider resentencing on both the second degree and first degree felony counts, given the scoresheet error. The prosecutor objected to any resentencing on the first degree felony because the appellate mandate had specifically excluded it. The trial court agreed that it could not resentence on the first degree felony and recommended the filing of a motion directed to that sentence for the court to consider.

The court then proceeded to consider the resentence on the second degree felonies. When the prosecutor stated that the original sentencing judge had not considered the lowest permissible sentence when imposing the original 140 month sentence, Paul objected and, after being sworn, stated that the judge had specifically sentenced him close to the bottom of the scoresheet's lowest permissible sentence, and that appeared in the transcript of the sentencing hearing. Noting that, the prosecutor stated that if the court wanted a completely new sentencing, there were nearly 100 victims who would need to be contacted. The prosecutor also asked the court to review the presentence investigation report and stated that the court might find that the original sentence was too lenient.

The court agreed with the prosecutor and returned to sentencing on the second degree felonies. It determined that it would maintain the same prison time at 140 months but reduce the probation to forty months to bring the total sentence within the fifteen-year maximum. Defense counsel suggested less prison time so that the appellant could get out and make restitution to the victims. The court rejected that request, as the original trial judge had not agreed that restitution was more important than punishment. Having read the entire file, the court believed that the original sentencing judge would have reduced the probationary period rather than the prison time were that judge deciding the resentencing. It is also clear that the court had the revised sentencing scoresheet showing a lowest permissible sentence of 118 months, as defense counsel asked the court for a copy of it to use in a motion directed to the first degree felony and again noted to the court that the lowest permissible sentence was 118 months, not the 138 months on the original scoresheet.

On the day after the sentencing hearing, appellant filed a pro se rule 3.800(b)(1) motion to correct sentencing error. He contended that the original scoresheet included extra prior record points that increased his lowest permissible sentence, and he was entitled to be resentenced for all counts based on a corrected scoresheet. One day after appellant filed his motion, his attorney withdrew as counsel because appellant wished to represent himself. Three days later, the court issued an order requiring the State to respond to the defendant's motion within ninety days. The State, however, did not respond for about six months. In it, the State argued that the trial court lacked jurisdiction because it had not ruled on the motion within sixty days under Rule 3.800(b)(1), and appellant should have filed a notice of appeal, as the trial court lost jurisdiction. Further, it argued that the motion was legally insufficient and should be denied. In November 2017, the trial court adopted the State's response and denied the motion. Appellant timely filed a notice of appeal from the date of the denial of the Rule 3.800(b)(1). This court treated the appeal as one from the resentencing pursuant to Florida Rule of Appellate Procedure 9.140.

Before addressing the merits, we must explain the procedural posture of this appeal, as it appears that the State and the trial court are relying on an older version of rule 3.800(b)(1) in determining that the motion to correct the sentencing error was "deemed denied" once the trial court did not rule within sixty days. Rule 3.800(b)(1) (2016) currently provides:

(b) Motion to Correct Sentencing Error. A motion to correct any sentencing error, including an illegal sentence or incorrect jail credit, may be filed as allowed by this subdivision. ...
(1) Motion Before Appeal. During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.
(A) This motion shall stay rendition under Florida Rule of Appellate Procedure 9.020(i).
(B) Unless the trial court determines that the motion can be resolved as a matter of law without a hearing, it shall hold a calendar call no later than 20 days from the filing of the motion, with notice to all parties, for the express purpose of either ruling on the motion or determining the need for an evidentiary hearing. If an evidentiary hearing is needed, it shall be set no more than 20 days from the date of the calendar call. Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. A party may file a motion for rehearing of any signed, written order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed. A response may be filed within 10 days of service of the motion. The trial court's order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought. A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing.

(first emphasis in original; second emphasis added). This version of the rule became effective in 2016 and removed prior language that a rule 3.800(b)(1) motion to correct any sentencing error is "deemed denied" when not ruled on within sixty days. As the supreme court stated:

the amendments are intended to resolve a conflict between the Rules of Criminal Procedure and the Rules of Appellate Procedure as to when a postconviction order is rendered for purposes of appeal. As relevant here, under Florida Rule of Appellate Procedure 9.020(i), "[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal." As recently amended, postconviction rules 3.192, 3.800, and 3.850 permit motions for rehearing of orders issued under those rules to be "deemed denied" if no ruling is entered within a specific number of days. See In re Amend. Fla. Rules of Crim. Pro. & Fla. Rules of App. Pro. , 132 So.3d 734 (Fla. 2013) ; In re Amend. Fla. Rules of Crim. Pro. , 26 So.3d 534 (Fla. 2009). According to the report, this puts the rendition of postconviction orders in question, and could result in the delayed filing of a notice of appeal and dismissal by the appellate court. See, e.g. , Mincey v. State , 158 So.3d 697 (Fla. 5th DCA 2015) (dismissing an appeal as untimely because the appellant failed to file a notice of appeal of an order denying rule 3.850 motions within 30 days from the date the court failed to issue an order on the appellant's motion for rehearing).
The amendments we adopt in this case resolve any conflict in the rules by removing the "deemed denied" language from the portions of rules 3.192, 3.800, and 3.850 where the language could cause confusion as to rendition.

In re Amend. to Fla. Rules of Crim. Pro. , 167 So.3d 395, 396 (Fla. 2015). Thus, to conform to the appellate rules, a signed, written order is required to complete rendition, and according to Rule 3.800(b)(1)(A), the motion is tolled until a signed written order is obtained, even where the trial court extends the time for the State to respond to the motion and fails to rule within sixty days. In this case, the order denying the timely filed motion to correct sentencing error was not filed until November 2017, and the notice of appeal is timely as to the resentencing judgment of April 2017. This also disposes of the State's incorrect argument that the motion was moot for failure of the trial court to rule within sixty days.

This case, however, is solely an appeal from the resentencing of the second degree felonies. Only those were subject to resentencing, and therefore, the motion to correct the sentencing error tolled rendition as to that resentencing. Appellant's motion specifically stated that it was filed pursuant to Rule 3.800(b)(1) to preserve a sentencing error for appeal if filed within thirty days of the sentence. We do not address the claim of scoresheet error as applied to the original sentencing on the first degree felony because it was not remanded for resentencing.

As to the resentencing on the second degree felonies, the motion is legally insufficient. The motion claims that the original sentencing scoresheet was incorrect, but it does not challenge the scoresheet presented at the resentencing. That scoresheet was correct and acknowledged by the trial court. The record does not suggest that the court did not understand that the scoresheet provided a revised lowest permissible sentence which was lower than the original scoresheet. The court determined to leave the same prison sentence, even with the corrected scoresheet, based upon the court's review of the entire record. There was no requirement or obligation for the trial court to reduce the sentence to the lowest permissible sentence, particularly under the facts of this case with nearly 100 victims. Because there was no error in the scoresheet used in the resentencing, the court correctly denied appellant's motion. There is no other error alleged in the sentence. Therefore, the court's ruling must be affirmed.

Affirmed.

Damoorgian and Kuntz, JJ., concur.


author: Per Curiam.

text:
    State of Florida, DEPARTMENT OF FINANCIAL SERVICES, Florida Department of Children and Families and City of Riviera Beach, a Florida Municipal Corporation, Appellants, v. Michael BARNETT, Individually, as Natural Father and Guardian of R.B., a Minor, and as the Personal Representative of the Estates of Daniel Barnett, Diane Barnett and Bryan Barnett, and Leroy Nelson, Jr., as Personal Representative of the Estate of Javon Xavier Nelson, a Minor, Appellees.
    No. 4D17-2840
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Sheridan Weissenborn of Dutton Law Group, P.A., Miami, for appellant Department of Financial Services.
    H.T. Smith of the Law Offices of H.T. Smith, P.A., Coral Gables, and John W. McLuskey of McLuskey, McDonald & Hughes, P.A., Miami, for appellee Michael Barnett.
    Vincent E. Miller of the Law Offices of Vincent E. Miller, P.A., Delray Beach, for appellee Leroy Nelson, Jr.
    ON MOTION TO CERTIFY QUESTION OF GREAT PUBLIC IMPORTANCE
   Per Curiam.

Unfortunately, our state has experienced a number of high-profile mass shootings in the past several years, some of which have led to negligence complaints against state agencies. In our opinion in the instant case, we narrowly construed section 768.28(5), Florida Statutes (2010), to limit the sovereign immunity waiver to $200,000 when there are multiple claims arising out of the same negligent act(s) committed by the state agency. However, we acknowledge that a broader reading of the statute could allow a per injury limitation.

Because this issue may continue to arise in the context of mass shootings and other mass injury events, we certify the following question as one of great public importance:

WHEN MULTIPLE CLAIMS OF INJURY OR DEATH ARISE FROM THE SAME ACT OF NEGLIGENCE COMMITTED BY A STATE AGENCY OR ACTOR, DOES THE LIMITATION ON THE WAIVER OF SOVEREIGN IMMUNITY IN SECTION 768.28(5), FLORIDA STATUTES, CAP THE LIABILITY OF STATE AGENCIES AT $200,000 FOR ALL RESULTING INJURIES OR DEATHS, AS CLAIMS AND JUDGMENTS "ARISING OUT OF THE SAME INCIDENT OR OCCURRENCE"?

Warner, May and Forst, JJ., concur.

      The statute was amended in 2016 to increase the cap to $300,000 for all claims or judgments.


author: Kanner, Daniel J., Associate Judge.

text:
    HADASSAH, The Women's Zionist Organization of America, Inc., Appellant, v. Stephen G. MELCER, Trustee, Marsha E. Gelt, Roberta Gelt, Jerilyn Gelt and National Multiple Sclerosis Society, Appellees.
    No. 4D18-623
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    William E. Boyes of Boyes, Farina & Matwiczyk, P.A., Palm Beach Gardens, for appellant.
    Richard S. Geller of Fishback Dominick, Winter Park, for appellee, Marsha E. Gelt, and Steven H. Kane of Kane and Koltun, Attorneys at Law, Maitland, for appellees, Marsha E. Gelt, Roberta Gelt and Jerilyn Gelt.
   Kanner, Daniel J., Associate Judge.

Three sisters, the current distributees of an irrevocable trust, dispute whether several charities are "qualified beneficiaries" of the trust under the Florida Trust Code (FTC). We reverse the grant of summary judgment to the sisters on our finding that under the plain language of the statute, the charities have the rights of qualified beneficiaries.

The trust was created in 1989 by Sylvia Gelt. The trust instrument provided that upon her death, a portion of the trust fund was to be placed in a Credit Shelter Trust for her husband, Samuel. Upon his death, the balance of the Credit Shelter Trust was to be divided into three separate trusts for the benefit of their daughters.

During their lifetimes, the daughters have the right to receive income and principal distributions from their respective trusts. They do not have general or testamentary powers of appointment over any portion of the principal or undistributed income of their respective trusts.

The trust instrument provides that upon the death of each daughter, her trust terminates and the balance of the principal and any undistributed income is redistributed to the trust(s) of the remaining living daughter(s). When the last daughter dies, the trust terminates and the trustee is instructed to distribute the remaining principal and undistributed income to three named charities.

Sylvia died first and Samuel died in 2016. Their three daughters are alive. The trustee filed this action seeking to resign. He named the daughters and the charities as defendants, alleging that the "defendants are the qualified beneficiaries of the Trust."

The daughters filed a motion for summary judgment, arguing that the charities are not qualified beneficiaries of the trust. The court found in favor of the daughters and Hadassah appealed.

Having the rights of a qualified beneficiary of a trust is important because under the FTC, a trustee is only required to "inform and account" to a trust's qualified beneficiaries. § 736.0813, Fla. Stat. (2017). Whether a charitable organization has the rights of a qualified beneficiary is a question of statutory interpretation. The relevant section of the FTC provides:

(1) A charitable organization expressly designated to receive distributions under the terms of a charitable trust has the rights of a qualified beneficiary under this code if the charitable organization, on the date the charitable organization's qualification is being determined:
(a) Is a distributee or permissible distributee of trust income or principal;
(b) Would be a distributee or permissible distributee of trust income or principal on termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions; or
(c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

§ 736.0110(1), Fla. Stat. (2017) (emphasis added). A "distributee" is a beneficiary who is currently entitled to receive a distribution. § 736.0103 (6), Fla. Stat. (2017).

We find the charities are qualified beneficiaries under section 736.0110(1)(b). On the relevant date, the daughters were the only "other distributees or permissible distributees then receiving or eligible to receive distributions" of trust income or principal. Id. "[O]n termination of the interests" of the daughters, the charities "would be" distributees. Id. (emphasis added).

The statute and the trust instrument are clear and unambiguous. If the daughters' interests terminate, the charities take the remainder. Therefore, the charities are qualified beneficiaries under section 736.0110(1)(b).

The error in the lower court's reasoning is found in paragraph 7 where the court found:

7. Each daughter is the sole distributee or permissible distributee of her separate Trust. Upon the termination of each daughter's separate trust, the only distributee or permissible distributee of trust income or principal would be the "Trusts created herein for Grantor's surviving daughters, in equal shares, or to the Trust of the sole surviving daughter, as the case may be," as provided in article 4, paragraph b.(2)(d) of the Trust.

The lower court's order contemplates the sequential termination of the daughters' individual interests such that A's interest passes to B and C; then B's interest passes to C; then C's interest passes to the charities. This interpretation is contrary to the plain language of the statute.

The statute contemplates the simultaneous termination of the interests of the distributees ("termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions"). If the interests of the distributees of the trust were simultaneously terminated, all of the daughters' interests would terminate and the charities would be the distributees. Therefore, the charities are qualified beneficiaries under the plain language of the statute.

Accordingly we reverse the trial court's order of summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded .

Damoorgian and Ciklin, JJ., concur.

      Originally, two of the three charities appealed. However, one of the charities dismissed its appeal, leaving Hadassah the sole remaining appellant.