THOMAS, J.
The State seeks rehearing after this court's opinion reversing Appellant's conviction due to the trial court's error granting, over Appellant's objection, the State's challenge for cause as to a prospective juror. In its Answer Brief, the State conceded the error, but argued that it was harmless because the State still had available to it a peremptory challenge that it
Appellant appeals his conviction for aggravated assault with a deadly weapon and burglary of a dwelling while committing a battery or assault. He raises two issues, arguing: 1) the trial court reversibly erred by granting the State's challenge for cause as to a particular juror; and 2) there was insufficient competent, substantial evidence to support the charge of burglary with assault. Because we agree with Appellant as to the first issue, we need not address the second.
During voir dire, the subject prospective juror indicated that he was engaged to a public defender in a different circuit. He acknowledged that his fiancee talked to him about the types of cases she worked on, but indicated he would have no problem finding a person guilty if the evidence supported such a result. The State moved to strike for cause this prospective juror solely on the basis of his engagement to a public defender employed in a different circuit. Over Appellant's objection, the court granted the strike. Appellant objected to the jury panel before it was sworn.
Appellant argues that the State's reason for its strike request was insufficient to warrant striking the prospective juror. The State correctly concedes error, but argues the error was harmless because it still had an unused peremptory challenge that could have been used to strike the juror. Appellant correctly argues that this argument was rejected by our supreme court in Ault, which, in turn, was based on United States Supreme Court precedent:
866 So.2d at 686 (emphasis in original).
In its rehearing motion, the State argues that the precedent of the U.S. Supreme Court case of Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), upon which our supreme court relied in Ault, was limited to capital cases in the later decision of Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). But the Florida Supreme Court's decision in Ault was decided in 2003 — 15 years after Ross — and yet our supreme court did not limit the concept pronounced in Gray to capital cases only. Thus, Ault is controlling, and we are constrained to apply its rationale to non-capital cases such as this one. Consequently, although the State's concession of the trial court's error is correct, its harmless error argument
REVERSED and REMANDED.
WOLF and MARSTILLER, JJ., concur.