Mack v. State, 620 So. 2d 804 (Fla. 5th DCA 1993). · Go Syfert
Mack v. State, 620 So. 2d 804 (Fla. 5th DCA 1993). Cases Citing This Book View Copy Cite
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Strongest positive: State v. Page-Martin (fladistctapp, 2014-03-21)
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discussed Cited as authority (rule) State v. Page-Martin
Fla. Dist. Ct. App. · 2014 · confidence medium
In Mack v. State, 620 So.2d 804, 804 (Fla. 5th DCA 1993), the jury was selected one day but was not sworn; the following day, when the defendant attempted to back strike two jurors by exercising peremptory challenges, “the trial court refused to allow the back[ jstrikes on the basis that there were no other available jurors.” Id.
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Kevin MACK
v.
STATE of Florida
No. 92-2072.
District Court of Appeal of Florida, Fifth District.
Jun 25, 1993.
620 So. 2d 804
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant., Robert A. Butterworth, Atty. Gen., Tallahassee, and Myra J. Fried, Asst. Atty. Gen., Daytona Beach, for appellee.
Diamantis, Griffin, Thompson.
Cited by 2 opinions  |  Published
DIAMANTIS, Judge.

Appellant appeals his convictions for sale of cocaine,[1] possession of cocaine,[2] and possession of cannabis,[3] claiming that the trial court erred in refusing to allow him to strike two prospective jurors before the jury was sworn. We agree and, therefore, reverse and remand for a new trial.

The jury was selected one day but was not sworn. The next day, when appellant attempted to strike two jurors by exercising peremptory challenges, the trial court refused to allow the back-strikes on the basis that there were no other available jurors. Relying on Jones v. State, 332 So.2d 615 (Fla.1976), the state contends that such error was harmless. In Gilliam v. State, 514 So.2d 1098 (Fla.1987), however, the supreme court specifically receded from Jones and held that the trial court’s denial of a defendant’s right to challenge any juror prior to the jury being sworn constitutes per se reversible error. See also Lewis v. State, 593 So.2d 1195 (Fla. 4th DCA 1992); Telemaque v. State, 591 So.2d 675 (Fla. 3d DCA 1991); Johnson v. State, 565 So.2d 911 (Fla. 1st DCA 1990); Shelby v. State, 541 So.2d 1219 (Fla. 2d DCA 1989); Fla.R.Crim.P. 3.310.

REVERSED and REMANDED.

GRIFFIN and THOMPSON, JJ., concur.
1

§ 893.13(l)(a)l, Fla.Stat. (1991).

2

§§ 893.03(2)(a)4, 893.13(l)(f), Fla.Stat. (1991).

3

§§ 893.13(l)(f), 893.13(l)(g), Fla.Stat. (1991).