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620 So. 2d 1008

Docket No. 79838.

Mitchell v. State

Darrell MITCHELL, Petitioner, v. STATE of Florida, Respondent.

Supreme Court of Florida

Decided June 17, 1993.

Supreme Court of Florida · decided 1993-06-17

Key passage — most relied on by later courts

“We held in Joiner v. State, 618 So.2d 174 (Fla.1993), that in order to preserve a Neil issue for review, it is necessary to call to the court's attention before the jury is sworn, by renewed motion or by accepting the jury subject to the earlier objection, the desire to preserve the issue.”

quoted by 4 later decisions, including 705 So. 2d 639 - Milstein v. Mutual SEC. Life Ins. Co., 712 So. 2d 429 - Melara v. Cicione

“affirmatively accepted the jury immediately prior to its being sworn without reservation of his earlier-made objection.... Had Joiner renewed his objection or accepted the jury subject to his earlier Neil objection, we would rule otherwise. Such action would have apprised the trial judge that Joiner still believed reversible error had occurred. At that point the trial judge could have exercised discretion to either recall the challenged juror for service on the panel, strike the entire panel and begin anew, or stand by the earlier ruling.”

quoted by 1 later decision, including 705 So. 2d 639 - Milstein v. Mutual SEC. Life Ins. Co.

Relies on 457 So. 2d 481 - State v. Neil · 405 So. 2d 418 - Jollie v. State · Joiner v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1993-06-17

How this case has been cited

Cited by 21 later decisions — most recently February 2015

21 state decisions

150199320002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*1009 James B. Gibson, Public Defender, and Paolo G. Annino and Anne Moorman Reeves, Asst. Public Defenders, Seventh Judicial Circuit, Daytona Beach, for petitioner.

¶2Robert A. Butterworth, Atty. Gen., and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for respondent.

¶3PER CURIAM.

¶4We review Mitchell v. State,595 So.2d 1120 (Fla. 5th DCA 1992), wherein the district court cited as controlling authority Joiner v. State,593 So.2d 554 (Fla. 5th DCA 1992), which we accepted for review. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.; Jollie v. State,405 So.2d 418 (Fla. 1981).

¶5Darrell Mitchell (Mitchell) was convicted of a third-degree felony in violation of section 817.563, Florida Statutes (1989). Mitchell argued before the district court that his conviction should be reversed because he had shown during voir dire that the State exercised its peremptory challenge against a prospective juror on the basis of race, in violation of State v. Neil,457 So.2d 481 (Fla. 1984), clarified, State v. Castillo,486 So.2d 565 (Fla. 1986). The district court affirmed Mitchell's conviction and sentence per curiam without opinion, citing its opinion in Joiner, which held that the Neil issue had been waived.

¶6We held in Joiner v. State,618 So.2d 174 (Fla. 1993), that in order to preserve a Neil issue for review, it is necessary to call to the court's attention before the jury is sworn, by renewed motion or by accepting the jury subject to the earlier objection, the desire to preserve the issue. In the instant case, Mitchell accepted the jury subject to his earlier Neil objection.[1] Therefore, we quash the decision below and remand to the district court for resolution of the properly preserved Neil issue.

¶7It is so ordered.

¶8BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

NOTES

¶9[1] At the end of jury selection, when asked if the jury was acceptable, defense counsel replied: "Yes, your Honor, subject to the objection that we made." The court responded: "I understand. That's fine."

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