DANIEL S. PEARSON, Judge.

Although we agree with the defendant that, absent a determination that he had exercised his peremptory challenges to exclude blacks from the jury solely because of their race, the trial judge was without authority to discharge the jury pool on the ground that there was not "any black member on the jury," there is absolutely no evidence in this record — and, indeed, not even a suggestion below — to indicate that the trial judge's action in discharging this initial jury pool for the reason stated unlawfully inhibited the defendant's right to freely exercise peremptory challenges to prospective jurors in the ensuing jury pool from which the jury that convicted the defendant was selected. Thus, though error there be, there is no palpable connection between it and the jury that tried and convicted the defendant. We therefore affirm the defendant's conviction.

I.

The defendant, Robert Koenig, was brought to trial on an indictment charging him with manslaughter. The evidence at trial would reveal that Koenig, at the time of the incident an on-duty police officer employed by Metropolitan Dade County, is white and that the victim of the shooting, Donald Harp, was black.

During the jury selection process, Koenig peremptorily challenged four prospective jurors, all of whom were black. There were no blacks among the five jurors left in the jury box, and apparently only one black person remained in the pool of prospective jurors. It was unlikely, however, that this fifth black prospective juror would, in the ordinary course of the selection process, be called to serve. Faced with the seeming inevitability of an all-white jury, the trial judge intervened:

"I have to tell you, I'm looking for a fair and impartial jury of one's peers of a cross section of the community and that's going to possibly eliminate one of the cross sections of the community.

"We may have Latin, you may have white, but you are not going to have any blacks on the jury. And, I may find the matter of manifest necessity to start all over again, not on this jury panel before you exercise your challenges but to start again. I do have to advise you of that.

"You're entitled to your challenges, don't get me wrong, but we may have to start all over again and dismiss this panel. I don't know. Let's see.

"[PROSECUTOR]: It's obviously important that we have a cross section of the community. As I see it now, the last remaining black will not be reached.

"THE COURT: I don't know how counsel can go, one, two, three, four, five, six, seven. That's eight away.

"[PROSECUTOR]: I have five remaining. He has one remaining.

"THE COURT: That's — you may not want to let go of anybody here as well.

"Anybody have any solutions to this one?

"[DEFENSE COUNSEL]: I don't, Your Honor.

. . . .

"[PROSECUTOR]: Your Honor, seeing that we have a panel of five blacks and four have been struck, I would ask at this time if Defense could stipulate, if the fifth black prospective juror would be taken out of turn, thus saving us the trouble of doing —

"[DEFENSE COUNSEL]: You mean you want to choose one and put [him] on?

"[PROSECUTOR]: No, I'm saying by stipulation we could choose the remaining on the jury who is Mr. Gabriel.

"THE COURT: You mean by stipulation out of turn?

"[PROSECUTOR]: Obviously.

"THE COURT: That would be about the only way it could be done. You understand my problem? Once again, I want to get a fair, not a favorable jury, one way or another, fair and impartial. The community is entitled to it, regardless. Okay.

"My giving — I'm giving you insight to judicial feelings. I have no way to pick a jury. It's not in my power, not within my purview to pick one individual and not another individual. I think you've got generally a decent group of people that would be fair and impartial.

"My suggestion is to go along with the State, or in the alternative, review one of your peremptory challenges that you've used here.

"It's entirely up to you as Defense attorney, or say, while, maybe you've reconsidered it, you wish to withdraw that particular one since I'm pretty liberal in my back strikes. If you don't want to, of course, you don't have to.

"[DEFENSE COUNSEL]: I understand.

"THE COURT: You understand the situation that I'm facing here. I want to make sure we have a good cross section. It only takes one person for a cross section, as far as I'm concerned.

"This community is basically three individuals or entities here, identifiable for years here and it's not like Perry, for example. You might have two areas of the community but here there's three and they all kind of want to be represented on the jury.

"Again, it's your decision and you are the attorney. That is one of my suggestions, or the State's suggestion, but to go and start tomorrow the whole selection if for some of you, you don't feel comfortable with any of these particular jurors, that will be okay. We'll start again. It will be up to you.

. . . .

"THE COURT: . . . So, you'll understand maybe I'm not saying that there was anything systematic but I don't want to end up with a problem. . . .

. . . .

"[DEFENSE COUNSEL]: I understand what the Court has said but I'm saying to the Court that we can reach no stipulation concerning the seating of jurors and can only insist that we proceed as the — in the order we've been proceeding in this trial up until this point.

"THE COURT: Okay. We have five tentative jurors. We're up to [Mr.] Cuba who is the first one in the second row."

Jury selection continued with the State exhausting its allotted six peremptory challenges. The lone remaining black person in the pool, Mr. Gabriel, was not yet called and would not be unless two of the jurors then in the jury box were challenged. The trial judge sustained the defendant's objection to the State's motion that it be given two additional peremptory challenges. The trial judge summarized the proceedings as they then stood and announced his decision to discharge the entire jury pool because no black had been chosen to sit on the jury:

"THE COURT: . . . What that leaves us with is six potential jurors. The only possible — let's see, there seems to as if it's going to be an impossibility at this point in time, even if Defense were to exercise a challenge but one, two, three, four, five, six, we have six potential jurors. State has no challenges for cause to enter. There is one peremptory challenge left the Defense.

"Do you wish to exercise it?

"[DEFENSE COUNSEL]: No, Your Honor.

"THE COURT: Okay. So at this point in time it would appear that we would have a potential jury of one, two, three Latin females, one — two Anglo females, and we refer to Anglo here in Miami — one Anglo male, there not being any black member on the jury.

"The Court would feel absolutely to dictate a good conscious [sic] and ability to sleep to dismiss this entire jury panel and see if we can start tomorrow to find something that would be acceptable to both State and Defense, a good cross section of the community.

. . . .

"We have to work extra hard which means we'll start again tomorrow. If we can get a jury that is acceptable in the Court's mind to be a fair and impartial jury panel of one's peers, then at that point in time we'll probably go into the opening tomorrow and go late.

"The Court, in its judgment had made a determination that we are going to go ahead and dismiss this jury panel on the doctrine of manifest destiny [sic] in an effort to get a fair and impartial jury panel of one's own peers, cross section of the community. This, of course, is not to say that there's — let's just say that it was the makeup of the entire panel itself that did not lend itself, in the eyes of State or Defense, to end up with the jury panel that would be fair and impartial. "On that basis, we go ahead and start again tomorrow. We'll dismiss this jury. Nobody has been sworn in so it's not a Defense of jeopardy."

The defendant objected to the discharge of the jurors. The following day, another jury was selected from a freshly summoned pool of potential jurors. Like its discharged predecessor, this jury, which tried and convicted the defendant, had no black members.

II.

Our determination that the trial court's discharge of the initial jury was unauthorized is based upon our examination of the relationship between the defendant's peremptory challenge right guaranteed by Section 913.08, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.350, and the prohibition announced in State v. Neil, 457 So.2d 481 (Fla. 1984), against peremptorily challenging jurors solely on the basis of race. As we detect it, the defendant's argument is that the trial judge, although perhaps acting with the best of intentions, improperly interfered with the defendant's peremptory challenge right when he discharged the unsworn but fully-selected jurors and jury pool without determining, as Neil requires, that the defendant had excluded blacks from the jury solely on the basis of race.

A.

The right to peremptorily challenge prospective jurors, guaranteed in Florida by statute and rule,

"has been held to be essential to the fairness of a trial by jury and has been described as one of the most important rights secured to a defendant. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). It is an arbitrary and capricious right which must be exercised freely to accomplish its purpose. It permits rejection for real or imagined partiality and is often exercised on the basis of sudden impressions and unaccountable prejudices based only on the bare looks and gestures of another or upon a juror's habits and associations."

Francis v. State, 413 So.2d 1175, 1178-79 (Fla. 1982).

"plays the salutary role of providing a basis of exclusion of a prospective juror who, as a result of circumstances relating to the particular case, the parties, or the witnesses, is not impartial, or who is perceived by a party in good faith not to be impartial or to be less impartial than other prospective jurors, but whose lack of impartiality cannot be established by conventional proof to justify a disqualification for cause."

People v. Thompson, 79 A.D.2d 87, 105, 435 N.Y.S.2d 739, 752 (1981).

Being thus akin to the challenge for cause, and being a tool to further insure the right to a fair and impartial jury, the peremptory challenge is to be "preserved in its fullest measure." Id.

Nevertheless, as the Supreme Court of Florida recognized in State v. Neil, 457 So.2d 481, 486, the right to an impartial jury — "[t]he primary purpose of the peremptory challenge" — is undermined when such challenges are used "solely as a scalpel to excise a distinct racial group from a representative cross section of society." Id. Accordingly, Neil instructs us that neither the State nor a defendant may exercise peremptory challenges solely on the basis of race. Where it is determined by the trial judge that a party "has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool." State v. Neil, 457 So.2d at 487. Thus, in the present case, the trial judge's discharge of the jury pool would have been permissible only had he concluded upon substantial evidence that the defendant had peremptorily challenged the four black prospective jurors solely because they were black.

B.

In our view, State v. Neil defines the outer limits of interference with the exercise of peremptory challenges — their exercise may be enjoined through the device of dismissal of the pool only when the court concludes, after inquiry, that a party is challenging jurors solely on the basis of race. Interference is therefore not permitted simply because the prospective jury is lacking a member of a particular race, or does not, as in the opinion of the court below, have "a good cross section." As the United States Supreme Court stated in Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690, 702-03 (1975):

"It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition. . . . .",

III.

All that has been said thus far concerns prospective jurors who, because prematurely discharged, had nothing to do with the trial and conviction of the defendant. As we have noted, no claim was made — below or here — that this second proceeding should have been barred as violative of the prohibition against an accused being placed twice in jeopardy for the same offense. As we have also noted, no claim was made — below or here — that the trial judge's actions in the first proceeding in some manner affected the second proceeding. What we do know is that the jury that tried and convicted the defendant did not have a black person on it, and that the prospective jurors whom the defendant peremptorily challenged were apparently black. Any present claim — and, again, there is none — that the trial judge's discharge of the initial jury panel may have somehow fettered the defendant's exercise of his peremptory challenges is therefore the purest conjecture and, moreover, likely belied by the facts. Accordingly, the judgment and sentence under review are

Affirmed.

DANIEL S. PEARSON, Judge.

ON REHEARING

PEARSON, DANIEL, Judge.

When we initially decided this case and affirmed the defendant's conviction, we observed that Koenig had waived any claim that the constitutional guarantee against being twice placed in jeopardy barred his prosecution and conviction. See p. 878 n. 2, supra. Several days after our decision was made public, the Florida Supreme Court held that "the failure to timely raise a double jeopardy claim does not, in and of itself, serve as a waiver of the claim." State v. Johnson, 483 So.2d 420, 423 (Fla. 1986). Because of this pronouncement of our state's highest court, we granted rehearing, specifically requesting the parties to address in supplemental briefs and argument the question whether double jeopardy could act as a bar to conviction in a case, as here, where the jury first selected was discharged before being sworn because the trial court was displeased with its make-up. Having now reheard the case, we are persuaded that, as the State has urged, the constitutional guarantee against being twice placed in jeopardy was simply not implicated by the lower court's actions — no matter how unauthorized — which prevented the jury from being sworn. We thus adhere to our affirmance of the defendant's conviction.

As the State correctly notes, and the defendant concedes, the decisions are legion that jeopardy does not attach in cases to be tried before a jury until the jury is empaneled and sworn. See, e.g., Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1963); Brown v. State, 367 So.2d 616 (Fla. 1979); Kennick v. State, 107 So.2d 59 (Fla. 1st DCA 1958). Without dispute, the courts of this country, both state and federal, have time and again applied this principle in rejecting double jeopardy claims where a trial court terminated proceedings, properly or improperly, during some stage of jury selection before the actual swearing of the jury. See, e.g., United States v. Wedalowski, 572 F.2d 69 (2d Cir. 1978); United States v. Gates, 557 F.2d 1086 (5th Cir. 1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d 763 (1978); Durham v. Wyrick, 545 F.2d 41 (8th Cir. 1976); United States v. Whitman, 480 F.2d 1028 (6th Cir.), cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973); United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967), cert. denied sub nom. Mastro v. United States, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968); Alexander v. Fogliani, 375 F.2d 733 (9th Cir. 1967); McMorris v. State, 394 So.2d 392 (Ala. Crim. App. 1980), cert. denied, 394 So.2d 404 (Ala. 1981), cert. denied, 452 U.S. 972, 101 S.Ct. 3127, 69 L.Ed.2d 983 (1981); Shaw v. State, 239 Ga. 690, 238 S.E.2d 434 (1977), cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1148 (1978); State v. Sermon, 404 So.2d 261 (La. 1981); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); Chandler v. State, 140 Miss. 524, 106 So. 265 (1925); Fields v. State, 627 S.W.2d 714 (Tex.Crim. App.), cert. denied, 459 U.S. 841, 103 S.Ct. 91, 74 L.Ed.2d 84 (1982).

Unlike any of the cases cited, however, the present case is one in which the trial court's refusal to swear the selected jury was motivated by its dissatisfaction with the make-up of the jury and specifically designed to prevent jeopardy from attaching. The defendant argues that, in such a case, his valued right in retaining a chosen jury, a right protected by the constitutional guarantee against double jeopardy, Crist v. Bretz, 437 U.S. at 36, 98 S.Ct. at 2161, 57 L.Ed.2d at 32; Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949), is as much impinged upon whether the fully selected jury is discharged before or after being sworn. Thus, the defendant urges, the arbitrary bright line requirement that the jury be sworn should be disregarded under the unique circumstances of the present case, because, as has been observed:

"The right of trial by jury is of but little value to the citizen in a criminal prosecution against him if [the guarantee against double jeopardy] can be violated and the accused left without remedy. If the judge can arbitrarily discharge and impanel juries until one is obtained that will render such a verdict as the state demands, or the attorney for the prosecution desires, and the only protection against such oppression is that a new trial may be ordered in the court trying him, or by the court of last resort, then of what value is this boasted right?"

O'Brian v. Commonwealth, 72 Ky. [9 Bush] 333, 339 (1872), quoted in Crist v. Bretz, 437 U.S. at 46, 98 S.Ct. at 2166, 57 L.Ed.2d at 38 (Powell, J., dissenting).

It is apparent in the foregoing observation that the concern there expressed is the imagined bad faith effort by a trial judge to obtain a conviction-prone jury while avoiding putting the defendant in jeopardy. While we, of course, share that concern, there is absolutely no indication in the present case that the trial court, though in error, acted out of a desire to aid the prosecution or harm the defendant. Moreover, were there evidence that the proceedings were terminated in such bad faith, the argument that double jeopardy should bar further proceedings whether or not the jury was sworn, or the argument that further proceedings would violate the defendant's due process rights might very well succeed. See Schulhofer, supra, at 513 ("The due process clause presumably affords protection during the voir dire period against a mistrial deliberately induced to deprive the defendant of a potentially favorable panel."). For now, however, it is enough to note that the present case does not involve the envisioned horrible of a trial judge's effort to get a hanging jury.

The underlying policies of the constitutional guarantee against double jeopardy are

"that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

Crist v. Bretz, 437 U.S. at 35, 98 S.Ct. at 2160, 57 L.Ed.2d at 31.

These policies are no more or less offended when the selected but unsworn jurors are discharged for innocuous reasons or, as here, because the trial court is dissatisfied with the fact that there is no black member among them. Thus it is that each and every case which rejects the contention that the double jeopardy clause should prevent further prosecution where jury selection has been aborted before the jury is sworn, decides, at least implicitly, that these underlying policies are not sufficiently disserved to merit a finding that double jeopardy bars further prosecution. Since the only difference between the present case and all others is the trial court's reason for discharging the jury, the question is whether the trial court's acknowledged desire that a black person be on the jury itself compels the application of the constitutional guarantee against double jeopardy. We think it does not.

It is evident that the fact that the jury first selected in the present case was discharged because the trial court was dissatisfied with its make-up causes no more embarrassment, expense, or ordeal or any greater anxiety or insecurity to the defendant than had the jury been discharged for reasons unrelated to its make-up. And insofar as the policy of preventing the prosecution from gaining an unfair advantage through the revelation of the defendant's intended defense, to the extent that the defendant tips his hand during the interrogation of potential jurors, he tips it to precisely the same extent in any case where the jury is discharged before being sworn whether the discharge be for proper or improper reasons. As is illustrated by the usual double jeopardy cases — those involving mistrials after a jury has been selected and sworn — the double jeopardy clause is not violated simply because the prosecution has had a look at the defendant's case or because the defendant must endure further delay, see Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

Although the trial court's reason for discharging the fully selected but unsworn jury is, in the absence of bad faith, irrelevant to our double jeopardy inquiry, it is clearly relevant to any claim by the defendant that his peremptory challenge right during the selection of the jury that tried and convicted him was affected. Thus, had the defendant claimed that when the trial court engrafted upon his right to freely exercise his allotted peremptory challenges the requirement that the jury include a black person, he, in obedience to this erroneous peremptory challenge rule, deviated from his true jury selection goals when selecting the jury that tried and convicted him, we would then have to address the impact of the trial court's action on the defendant's peremptory challenge right. But, as we have already said, no such claim below or here was ever made.

For the reasons given, we adhere to our decision to affirm.