[W]here the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. Spencer , 238 So.3d at 715 (quoting Hayes , 94 So.3d at 463 ); see alsoR.J. Reynolds Tobacco Co. v. Enochs , 226 So.3d 872, 874 (Fla. 4th DCA 2017) (same); West v. State , 168 So.3d 1282, 1285 (Fla. 4th DCA 2015) (same); Denis , 137 So.3d at 586 (same); Burgess v. State , 117 So.3d 889, 891 (Fla. 4th DCA 2013) (same); King v. State , 106 So.3d 966, 968 (Fla. 4th DCA 2013) (same); Victor v. State , 126 So.3d 1171, 1172 (Fla. 4th DCA 2012) (same); Cook v. State , 104 So.3d 1187, 1190 (Fla. 4th DCA 2012) (same). Also relying on Hayes , we have said that "[c]ompliance with each step [of the Melbourne procedure] is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial."
[W]here the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court.Spencer, 238 So. 3d at 715 (quoting Hayes, 94 So. 3d at 463); see also R.J. Reynolds Tobacco Co. v. Enochs, 226 So. 3d 872, 874 (Fla. 4th DCA 2017) (same); West v. State, 168 So. 3d 1282, 1285 (Fla. 4th DCA 2015) (same); Denis, 137 So. 3d at 586 (same); Burgess v. State, 117 So. 3d 889, 891 (Fla. 4th DCA 2013) (same); King v. State, 106 So. 3d 966, 968 (Fla. 4th DCA 2013) (same); Victor v. State, 126 So. 3d 1171, 1172 (Fla. 4th DCA 2012) (same); Cook v. State, 104 So. 3d 1187, 1190 (Fla. 4th DCA 2012) (same). Also relying on Hayes, we have said that "[c]ompliance with each step [of the Melbourne procedure] is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial."
However, Perrotto does not discuss class membership. Rather, the only issue decided in that case was the disqualification of the trial judge.Plaintiff's counsel also asked the trial court to rely on R.J. Reynolds Tobacco Co. v. Enochs , 226 So. 3d 872, 873 (Fla. 4th DCA 2017), claiming Reynolds' arguments about "choice" and "failure to quit" had been considered and rejected in that case by this court. Plaintiff attached Reynolds' appellate brief in Enochs to its legal memoranda for the trial court on the issue of "choice;" where, "[p]laintiff won a verdict and, as one of the four issues on appeal, Defendant argued that ‘choice,’ ‘ability to quit,’ and ‘knowledge of dangers’ were, in fact, part of the class membership."