Jones v. State

• Citation: 466 So.2d 301,10 Fla. L. Weekly 528
• Decision Date: 26 February 1985
• Docket Number: No. 81-2176,81-2176
• Parties: 24 Ed. Law Rep. 603, 10 Fla. L. Weekly 528 Johnny L. JONES, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 301

466 So.2d 301

24 Ed. Law Rep. 603, 10 Fla. L. Weekly 528

Johnny L. JONES, Appellant, v. The STATE of Florida, Appellee.

No. 81-2176.

District Court of Appeal of Florida,

Third District.

Feb. 26, 1985.

Rehearing Denied April 12, 1985.

Frates, Bienstock & Sheehe and Terry Bienstock, Fletcher Baldwin, Gainesville, for appellant.

Jim Smith, Atty. Gen., Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., for appellee.

Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT,

BASKIN, DANIEL S. PEARSON and FERGUSON, JJ. ^*

SCHWARTZ, Chief Judge.

This is an appeal from a conviction for grand theft rendered after a jury trial. The cause was heard en banc because the proposed but unreleased panel opinion ¹--which is now the appendix to Judge Hubbart's dissent--demonstrated on its face a misapplication of and departure from the rules relating to the sufficiency of circumstantial evidence in criminal prosecutions which we previously announced in Hernandez v. State, 305 So.2d 211 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 192 (Fla.1975), ² Knight v. State, 392 So.2d 337 (Fla. 3d DCA 1981), pet. for review denied, 399 So.2d 1143 (Fla.1981), ³ and Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA 1981), pet. for review denied, 407 So.2d 1105 (Fla.1981), ⁴ See State v. Navarro, 464 So.2d 137 (Fla. 3d DCA 1985). Applying those principles to the facts as very fairly and completely set forth by Judge Hubbart, we are convinced they are more than sufficient, indeed overwhelmingly so, to justify the trial court's action in submitting the cause for jury determination and the jury's consequent finding of the defendant's guilt. Accord, Lincoln v. State, 459 So.2d 1030 (Fla.1984); Heiney v. State, 447 So.2d 210 (Fla.1984); Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 460 U.S. 1049, 103 S.Ct. 1496, 75 L.Ed.2d 928 (1983); State v. Allen, 335 So.2d 823 (Fla.1976). Hence, we reject the claim that the defendant is entitled to be discharged.

We do however reverse for a new trial on the authority of Neil v. State, 457 So.2d 481 (Fla.1984), reversing Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983). There is no doubt that the record as to the state's use of its peremptory challenges to excuse black prospective jurors satisfied the Neil prerequisites for inquiry by the trial court into the basis of those challenges, which Jones requested but which was denied by the trial judge. And, notwithstanding the language in Neil concerning its general non-retroactivity, 457 So.2d at 488, it is also clear from the Supreme Court's subsequent reversal for a new trial on the basis of Neil in the identical case of Andrews v. State, 459 So.2d 1018 (Fla.1984), reversing 438 So.2d 480 (Fla. 3d DCA 1983), that Neil governs so-called "pipeline" cases such as this one, in which There is no merit in the appellant's points II and IV challenging the admissibility of evidence. The other issues concern matters unlikely to affect or to arise at the new trial and therefore do not require treatment here.

the issue was properly preserved below and which was pending when Neil was decided. City of Miami v. Cornett, 463 So.2d 399 (Fla. 3d DCA 1985); Safford v. State, 463 So.2d 378 (Fla. 3d DCA 1985); see also, e.g., Hoberman v. State, 400 So.2d 758 (Fla.1981) (applying Sarmiento holding to pending appeal); Tascano v. State, 393 So.2d 540 (Fla.1980).

Reversed and remanded for a new trial.

HUBBART, Judge (dissenting).

I must respectfully dissent. I would vacate the order setting this cause for an en banc hearing, as being unauthorized by Fla.R.App.P. 9.331, and would return this cause to the three-judge panel of this court which has already decided this case, so that the said panel may release its duly authorized opinion. The said panel opinion reverses the defendant Jones' conviction, finding insufficient evidence to convict, and remands with directions to discharge the defendant Jones from the cause. In my view, it is the only authorized opinion of the court in this cause.

A brief background of this case is in order. A three-judge panel of this court (Hubbart, Baskin, Ferguson, JJ.) has previously received briefs, heard oral argument and rendered a unanimous opinion reversing the defendant Jones' conviction for insufficient evidence. Prior to this opinion's final release, a majority of the court, not including the panel, determined to conduct a de novo en banc hearing in the cause and the panel opinion was, accordingly, not released. Subsequent thereto, additional briefs were ordered and an oral argument was held before the full court, although the parties were never informed of the court's basis for a de novo en banc hearing. Today's en banc decision is a result of this process.

I think the order setting this cause for an en banc hearing and the subsequent en banc proceedings conducted herein are unauthorized under Fla.R.App.P. 9.331. I reach this conclusion for three separate, independent reasons.

First, it is questionable, in my view, whether the order setting this cause for an en banc hearing was a collegial decision. The three-judge panel which decided this case played no real part in the decision to en banc this case; the en banc order and en banc proceedings have taken place on the informal vote of five judges of this court. Plainly, Fla.R.App.P. 9.331(a) contemplates collegial decisions on all en banc matters; in my view, it is dubious whether such has been accomplished in this case.

Second, I do not think the full court has the authority to order an en banc hearing after the issuance of a three-judge panel decision, but prior to its final release, as here, without the concurrence of at least two judges of the original panel. En banc hearings, as opposed to en banc rehearings, are not contemplated by Fla.R.App.P. 9.331 after a three-judge panel of the court has, in fact, decided the case unless a majority of the original panel request the en banc hearing as, for example, for the purpose of overruling a prior case of the same court. See In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982). It is urged, nonetheless, that the legal basis for an en banc hearing here is an asserted lack of uniformity, under Fla.R.App.P. 9.331, between the three-judge panel opinion and prior decisions of this court. It seems elementary, however, that no such lack of uniformity can possibly arise until the three-judge panel opinion has been publicly released and has become part of the law of this state. This has not been done in this case, and, accordingly, the de novo en banc proceedings are, in my view, unauthorized under Fla.R.App.P. 9.331.

In this connection, the court's reliance on Edge v. State, 455 So.2d 626 (Fla. 5th DCA "Section 4(a), Art. V, of the Constitution of the State of Florida provides that in district courts of appeal 'three judges shall consider each case and the concurrence of two shall be necessary to a decision.' That constitutional provision has absolutely no meaning if a majority of the judges on a district court of appeal, disagreeing with the view of some proposed panel majority decision, can, by merely claiming an en banc hearing is necessary to maintain uniformity in the court's decisions, act under Florida Appellate Rule 9.331 to wrestle jurisdiction of a particular case away from the panel to which it was assigned and decide it according to a different view of the law or facts and do this without the proposed panel majority opinion ever being published or the claimed conflict issue ever being briefed, argued or conferenced. This occurred the first time on this court in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), and each instance needs to be noted for whatever value it may have and for consideration by anyone concerned with the constitutional problem involved in the present en banc rule as it is being used. As here and in Torrence en banc jurisdiction can be decisive in a particular case. En banc jurisdiction is important beyond the resolution of the particular case and its effect on the body of law. Its employment can constitute an end run around the constitution which is so effective as to be subject to no defense or review. I dissent from its use in this case."

                1984) and Royal v. State, 452 So.2d 1098 (Fla. 5th DCA 1984), as precedent for the en banc proceedings herein is, in my view, misplaced.  466 So.2d at 302 n. 1.   In both of these cases, members of the three-judge panel itself appear to have voted for the en banc hearing and a unanimous panel opinion was never rendered.  In re K.A.F., 442 So.2d 365 (Fla. 5th DCA 1983) and Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), on the other hand, seem more on point, although ultimately distinguishable.  In these cases, an en banc hearing was held based on an alleged conflict between a proposed majority panel opinion and a prior Fifth District decision;  unlike this case, however, one judge on the original panel was in dissent and apparently agreed to the en banc hearing.  No panel opinion was actually ever rendered in view of the dissenting judge's position on the matter.  So far as I am aware, the instant case is the first case in Florida where a district court of appeal has ordered an en banc hearing after a unanimous three-judge panel opinion has been rendered, but prior to its final release, without the consent of any member of the three-judge panel.  Still, I recognize that K.A.F. and Torrence are somewhat at variance with my views on this issue, and, to that extent, I agree entirely with Judge Cowart's dissent in K.A.F
                

442 So.2d at 369-70 (Cowart, J., dissenting).

Third, I see no lack of uniformity, in any event, between the three-judge panel opinion in this case and any prior decision of this court sufficient to trigger an en banc hearing under Fla.R.App.P. 9.331. The court asserts, in effect, such non-uniformity by claiming that the panel opinion demonstrates on its face "a misapplication of and departure from the rules relating to...