Opinion
No. 94-503.
June 21, 1995. Rehearing Denied August 23, 1995.
Appeal from the Circuit Court, Dade County, Leslie Rothenberg, J.
Bennett H. Brummer, Public Defender, and May L. Cain, Special Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and JORGENSON and LEVY, JJ.
John Fitzgerald appeals from judgments of conviction for first degree felony murder, armed robbery with a deadly weapon, burglary of an occupied dwelling, and grand theft of an automobile. We affirm.
The trial court properly denied the defense's peremptory challenge of juror Benitez. The record indicates that the State had cause to object to the challenge as discriminatory and demand a Neil inquiry, and that the reasons given for the strike were pretextual. See State v. Slappy, 522 So.2d 18, 22 (Fla.) (factors that may demonstrate pretext include perfunctory examination of challenged juror and proffered reason for challenge that is unrelated to facts of case), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).
We find no merit in the remaining points on appeal.
AFFIRMED.
JORGENSON and LEVY, JJ., concur.
In my view, the state made no record showing whatever — either in its initial objection to the peremptory challenge in question or in the colloquy which followed — to satisfy the Neil-Batson threshold that the juror was being challenged "solely because of [her] race" or that the strike was "being used in a racially discriminatory manner." Windom v. State, 656 So.2d 432 (Fla. 1995). Under Windom, Betancourt v. State, 650 So.2d 1021 (Fla. 3d DCA 1995), review denied, 659 So.2d 272 (Fla. 1995) and Portu v. State, 651 So.2d 791 (Fla. 3d DCA 1995), therefore, it was inappropriate even to require the presentation of a "race neutral" reason for the challenge and reversible error to disallow it on the ground that the proffered explanation was unsatisfactory. On this basis, therefore, I would reverse for a new trial.