¶1concurring specially.
¶2The majority properly resolves this case by applying the plain language of section 913.08, Florida Statutes, and Florida Rule of Criminal Procedure 3.350, which link the number of peremptory challenges to the “offense charged,” in the singular. I write first to note that although our holding in this case is consistent with the result in Buchanan v. State, 927 So.2d 209 (Fla. 5th DCA 2006), it is not wholly consistent with the reasoning in that case. Buchananshould have been decided based simply upon the long-standing case law treating possession of a firearm as “an essential element of the crime charged” whenever section 775.087(2), Florida Statutes, is invoked. See, e.g., Mesa v. State, 632 So.2d 1094, 1097 (Fla. 3d DCA 1994). Under this precedent, the “offense charged” carries a life sentence whenever the state alleges the additional elements necessary for imposition of a minimum mandatory sentence of life under section 775.087(2).
¶3I also question the per se reversal standard adopted by the panel in Buchanan. In Bushy v. State, 894 So.2d 88, 98 (Fla.2004), the supreme court noted that peremptory challenges are not constitutionally guaranteed at the state or federal level. See also Wilson v. State, 304 So.2d 119, 121 (Fla.1974) (“While the right to trial by jury in a case of this nature is fundamental, the exact number of persons prescribed to constitute a trial jury panel, as well as enumerated peremptory challenges, is a procedural process.... Additional review by our Court reveals that the use or lack of use of the peremptory challenges fails to demonstrate any prejudicial, harmful or reversible error.”') (citations omitted) (emphasis added). In a similar context, it is well-established that a defendant who claims to have been wrongfully forced to exhaust his peremptory challenges must also establish prejudice by demonstrating that an objectionable juror actually served on the jury (i.e., one that the defendant either unsuccessfully challenged for cause or otherwise objected to after his or her peremptory challenges were exhausted), before an appellate court will reverse his or her conviction. See Busby, 894 So.2d at 96-97. A similar rule should apply here. And, in the appropriate case, I believe that our court should revisit the per se reversal rule announced in Buchananfor cases in which a defendant is not afforded the appropriate number of peremptory challenges.
¶4SAWAYA and COHEN, JJ., concur.
¶5concurring in part and dissenting in part.
¶6I concur that we should deny the motion for rehearing but would not grant the request for certification. In his motion for rehearing, Appellant urges that our decision contravenes Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which Appellant says established a “wholly different legal landscape.” Apprendiwas predicated on the constitutional right to a jury trial and held that a defendant has the constitutional right to have a jury decide all the facts that bear on the magnitude of the defendant’s punishment, except his or her prior record. Apprendihas no bearing on the issue in this case. There is no constitutional entitlement to peremptory challenges. Georgia v. McCollum, 505 U.S. 42, 57,112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Thus, this case presents a pure question of statutory/rule construction, nothing more. The statute, section 913.08(1), Florida Statutes, specifies that the number of challenges is determined from the “offense charged,” in the singular. The corresponding rule of criminal procedure, rule 3.350(c), makes clear that in a multi-count information, it is the individual count that allows for the greatest number of challenges, considered in isolation, that dictates the number of peremptory challenges for the case.
¶7Our construction of the statute is consistent with its plain language, the rule and the construction given by courts of other jurisdictions construing similarly worded statutes and rules. Appellant essentially seeks to have us re-write the texts of both the statute and rule but has offered no authority in support of the construction he urges other than our panel decision in Buchanan v. State, 927 So.2d 209 (Fla. 5th DCA 2006).
Is a criminal defendant entitled to ten peremptory challenges ... where a calculation of total sentence points ... could subject the defendant to life imprisonment?
¶8. The rule affords discretion to the trial judge to confer additional challenges. In this case, Appellant did not argue that the trial judge abused his discretion under this rule. Nor did Appellant argue that the statute controls over the rule. In fact, neither Appellant nor Appellee addressed this particular subsection of the rule at all.
¶9. Appellant’s proposed certified question illustrates this point:
¶10.Even accepting Appellant’s contention that "exceptional importance" is synonymous with "great public importance,” the fact that we considered this case en banc should not be taken to mean that we thought it involved an issue of exceptional importance as suggested by Appellant. We voted to hear the case en banc before releasing the panel decision. It is just as likely that we considered the case en banc to maintain uniformity in our decisions.