Samuel R. Brown v. State

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         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


SAMUEL RALPHEAL BROWN,

             Appellant,

 v.                                                    Case No. 5D15-3472

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed October 28, 2016

Appeal from the Circuit Court
for Marion County,
Hale R. Stancil, Judge.

James S. Purdy, Public Defender, and Noel
A. Pelella, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, and
Rebecca Roark Wall, Assistant Attorney
General, Daytona Beach, for Appellee.


PER CURIAM.

      As the State properly concedes, Appellant’s convictions for both attempted

second-degree murder and attempted felony murder violated double jeopardy principles.

See Wilkes v. State, 123 So. 3d 632, 634-35 (Fla. 4th DCA 2013) (holding that convictions

of attempted murder and attempted felony murder, arising out of single attempt to cause
death to single victim, violated double jeopardy). On remand, the trial court shall set aside

the conviction for the lesser offense.

       We further conclude that Appellant failed to preserve the issue of whether the trial

court erred in failing to make a separate finding as to whether the State provided genuine

race-neutral reasons in support of its exercise of two peremptory challenges. See, e.g.,

Spencer v. State, 196 So. 3d 400, 406 (Fla. 2d DCA 2016) (holding that opponent of

peremptory challenge, which was made pursuant to Melbourne,1 must object to any

deficiency, including pretext, at time of challenge); Ivy v. State, 196 So. 3d 394, 398-99

(Fla. 2d DCA 2016) (holding that defendant failed to preserve issue of whether trial court

erred in failing to make separate finding on issue of pretext after finding exercise of

peremptory challenge to be race-neutral); Hanna v. State, 194 So. 3d 424 (Fla. 3d DCA

2016) (joining the decisions of Spencer and Ivy).

       AFFIRMED, in part; REVERSED, in part; REMANDED.


SAWAYA, EVANDER and WALLIS, JJ., concur.




       1   Melbourne v. State, 679 So. 2d 759 (Fla. 1996).


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