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FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 20

CASES FROM THE WEEK May 22, 2020

TO PRESERVE AN OBJECTION TO THE ADVERSE PARTY’S PROFFERED RACE-NEUTRAL REASON FOR A PEREMPTORY STRIKE, PARTY MUST MAKE A SPECIFIC OBJECTION TO THE REASON PROFFERED.

State v. Johnson, 45 Fla. L Weekly S161 (Fla. May 21, 2020):

The Florida Supreme Court clarified the procedure for preserving a challenge to a trial court’s determination that a race-neutral reason deemed “facially” valid for a peremptory strike, was genuine under Step three of Melbourne test. The process requires (1) an objection; (2) a race-neutral explanation; (3) a determination of genuineness.

Under Florida law, the party’s use of peremptory challenges is limited only by the rule that such challenges may not be used to exclude members of distinctive groups (like racial or gender groups).

While peremptories are presumed to have been exercised in a non-discriminatory manner, if a party believes the strike has been made on racial grounds, it must make a timely objection on that basis, show that the venireperson is a member of a distinct racial group, and request the court to ask the striking party to give a reason for the strike.

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Once those requirements are met, the trial court then asks the other party to come forward with a race-neutral explanation for the strike, and the burden of production shifts to that party.

If the explanation itself is facial 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 on the third step is not on whether the explanation is reasonable, but rather whether it is genuine.

In the case before it, the defendant had asked for a race-neutral reason for the strike, and the State offered that because the juror had previously indicated that he would prefer “CSI evidence.” Without hearing anything else, the trial court found the reason to be race-neutral, and without objection or argument from the defendant as to why the State’s proffered reason was not genuine, the court upheld the State’s peremptory strike. The defendant later renewed his objection to the State’s peremptory strike, but still never argued that the State’s proffered explanation lacked record support, or advanced any argument as to why that explanation was not genuine.

The lower court had determined that the defendant’s objection and request for a race-neutral reason was necessary to preserve the objection to the genuineness of the reason. It reversed the trial court’s ruling, and ordered a new trial. The supreme court reversed. It found that the trial court failed to create a record sufficient to demonstrate compliance with the duty to determine the genuineness of the proffered race-neutral reason.

Reminding us that proper preservation of any issue generally requires a timely and contemporaneous objection, with a legal ground articulating the legal basis for it, the same is required in the context of preservation of a Melbourne claim. The objecting party must put the trial court on notice of the basis for the challenge, and create a record to support that objection.

At Step three, the trial court should then focus on the genuineness of the explanation, rather than the reasonableness of the reason, and the opponent of the proffered race-neutral reason must explain the basis for challenging the genuineness to preserve it for review.

Once the proponent of the strike proffers a facially race-neutral reason, the opponent must place the court on notice that he or she is contesting the genuineness of the reason, to preserve any objection to the propriety of the genuineness finding on appeal.

In this case, the defendant did not make a specific objection to the State’s proffered facially race-neutral reason. Therefore, he failed to preserve his challenge to the genuineness determination.

ERROR TO ENTER SUMMARY JUDGMENT IN FAVOR OF DEFENDANT WHEN GENUINE ISSUES OF MATERIAL FACT REMAIN BASED ON A VIDEO AND RESPONSES TO INTERROGATORIES

Carlson v. Volusia County Schools, 45 Fla. L Weekly D1165 (Fla. 5th DCA May 15, 2020):

In granting summary judgment, the trial court relied on the plaintiff’s interrogatory answers as well as a video that captured the accident. However, after reviewing the video and the interrogatory answers, the court concluded that there was at least a “slight doubt” (even though it noted that the video evidence strongly refuted the other evidence) necessitating reversal of the summary judgment. The video simply failed to “conclusively refute” the plaintiff’s evidence to the contrary.

LICENSED MASSAGE THERAPIST MAY NOT BE REIMBURSED FOR MEDICAL BENEFITS UNDER PIP

Southern Owners ins. Co. v. Hendrickson, 45 Fla. L Weekly S1165 (Fla. 5th DCA May 15, 2020):

The plain text of §627.736(1)(a)5. precludes a licensed massage therapist from being reimbursed for medical benefits. Because the Circuit Court ignored the plain language of the statute, and violated a clearly established principle of law thereby resulting in a miscarriage of justice, the court agreed that second tier certiorari relief appropriate.