Dykman v. State, 44142
| Decision Date | 12 December 1973 |
| Docket Number | No. 44142,44142 |
| Parties | John DYKMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Joel Hirschhorn, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Peter F. LaPorte, Asst. Atty. Gen., for appellee.
This cause comes to us pursuant to an order of the District Court of Appeal, Third District, transferring the case to this Court. 1 For the reasons set forth below, we accept the transfer only as to the trial court's upholding of the validity of Chapters 57--550 and 70--1000 relating to grand jury selection and remand the cause to the district court as to the remaining issues.
The basis of the transfer, as revealed by the motion therefor, was asserted to be the trial court's ruling on the constitutionality of various state statutes. Of the seven points raised on appeal, three (competency to stand trial, admissibility of certain hearsay evidence, and giving of certain jury instructions) are clearly outside the scope of our jurisdiction as to direct appeals under Article V, § 3(b)(1), of the State Constitution. Thus, jurisdiction in this Court, if present, must rest upon one of the remaining four issues raised on appeal.
By motions to suppress, appellant attacked the admissibility of various items of evidence obtained by the police in a search of his home. Appellant asserts that any 'consent' that he gave to the search was vitiated by the fraud and duress he asserts were practiced upon him by the police officers conducting the search, thus invalidating the consent and making the search unreasonable in that the officers did not have a warrant and that the search was not, according to appellant, pursuant to a lawful arrest. A brief description of the background of the search may be helpful.
Appellant, a 78-year-old man, reported to the police that his wife was missing. Police officials later found the dismembered portions of a woman's body, wrapped in plastic bags, along the banks of a canal in the city; this body was identified as the body of appellant's wife (although appellant has made some effort to attack this identification). After the identification had been made, two police officers went to appellant's house and informed him that they would like to search the house in connection with the investigation of the disappearance of his wife. Appellant agreed to this proposition, and signed a consent form. Appellant now asserts that this apparent consent was invalid, in that (1) the police officers deceived him by not notifying him that a body identified as that of his wife had been discovered, (2) the situation of two policemen confronting a man of his age was fraught with coercion, (3) the police officers failed to warn appellant of his right not to consent to the search or any of his other 'Miranda' rights, and (4) that he was not competent to give a valid consent. The trial court denied the motions to suppress.
Inasmuch as the question presently before us is whether or not our direct appeals jurisdiction has properly been invoked, we do not reach the merits of the issue as to whether the search in question was valid; our sole concern at present is whether this issue is properly before us. We hold that it is not.
In determining that the search in question was valid, the trial court did not have presented to it any issue of statutory validity, and did not rule on the validity of any statute, federal or state. Nor did the trial court expressly construe, define or overtly explain the meaning of any constitutional provision. In fact, it would be difficult to say that the trial court had even inherently construed a constitutional provision, and we have previously indicated that the Inherent construction of a constitutional provision would not support a direct appeal to this Court. 4 In ruling upon the motions to suppress, the trial court merely applied undisputed propositions of law to the facts it found to exist in the instant case, and in so
doing found the motion not to be wellfounded. Even if the trial court ruling on the motion is erroneous, it would not support a direct appeal to this Court. Accordingly, jurisdiction in this Court upon direct appeal may not be founded upon the issue of validity of the search.
By motions, appellant attacked the petit jury venire from which a jury was to be impaneled to try him, asserting that the means by which such venire was selected were constitutionally improper in that certain 'clearly identifiable groups' were excluded; appellant requested an evidentiary hearing on his allegations. This motion was not supported by affidavit based upon information and belief, nor did it state facts sufficient to raise a reasonable suspicion that the jury venire was in fact improperly drawn. We note that the motion in the instant case is identical to that considered in Rojas v. State, 288 So.2d 234 (Fla.1973), in which we held that the denial of such a motion would not support a direct appeal to this Court, inasmuch as the trial court, by denying the motion, had not passed upon the validity of any statute nor expressly construed any constitutional provision. The motion in the instant case, and the trial court's ruling thereon, is distinguishable from that presented in Rojas only in the fact that the trial court in the instant case denied the request for an evidentiary hearing.
Our disposition of a similar challenge in Rojas upon the grand jury there involved is appropriate here as to the denial of an evidentiary hearing on the petit jury challenge. In Rojas we observed that a court is not required to permit a full-scale investigation of its jury array until it has been shown to be suspect, and that to make such a showing the challenger must assert facts tending to raise a reasonable doubt as to whether the panel may be improperly constituted. 5 In the instant case, appellant's attack on the petit jury panel did not present any factual basis upon which a reasonable suspicion of impropert selection methods could arise, but only presented the bare conclusory statements of the motion, unsupported by so much as an affidavit based upon information and belief. Appellant asserts that the hearing he requested would have produced the evidence that the petit jury panel was improperly drawn, and directs our attention to State v. Covington, 258 N.C. 495, 128 S.E.2d 822 (1963), in which it was held that the trial court had erred in not allowing an evidentiary hearing and the subpoenaing of records in an attempt to show discrimination in the selection of a grand jury. However, there, unlike the instant case, the attack on the panel was supported by an affidavit of counsel, asserting certain facts based on information and belief, supporting the motion. Even this minimal factual support for the motion was lacking in the case before us today, appellant neither having made a showing that the panel was suspect nor having presented an affidavit showing a factual basis upon which such a suspicion could properly rest. We have only the bare conclusory statements of the motion itself; this is insufficient.
To summarize, the trial court in denying the appellant's request for an evidentiary hearing on the petit jury challenge did not pass upon the validity of any state or federal statute, nor did it construe any constitutional provision; rather, the trial court merely ruled that the motion did not present a sufficient basis for an evidentiary hearing, and that the attack upon the petit jury panel was not well founded. Our direct appeals jurisdiction may not properly be invoked upon this ground.
It appears that the appellant has waived his right to attack the composition Appellant has asserted by various motions that the grand jury which returned the indictment against him was improperly constituted in that it discriminatorily excluded...
To continue reading
Request your trial
-
Valle v. State
...authorizing grand jury selection have been consistently upheld by this Court as both constitutional and effective. See Dykman v. State, 294 So.2d 633 (Fla.1973); Rojas v. State, 288 So.2d 234 (Fla.1973), cert. denied, 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974); Seay v. State, 286 So.2d......
-
Huffman v. Wainwright
...shall be in writing and shall specify the facts constituting the ground of the challenge." The Florida Supreme Court in Dykman v. State, 294 So.2d 633 (Fla. 1973), and Rojas v. State, 288 So.2d 234 (Fla. 1973), stated that before a court is required to permit an investigation of its jury po......
-
Pitts v. State
...such circumstances the trial judge was eminently correct in denying appellants' Post-trial motion for discovery. (See Dykman v. State, Sup.Ct.Fla.1974, 294 So.2d 633) We next consider appellants' claim that their right to a fair trial was denied because they were tried in Jackson County, Fl......
-
Croteau v. State
...288 So.2d 234 (Fla.1973); Ogle v. Pepin, 273 So.2d 391 (Fla.1973); Armstrong v. City of Tampa, 106 So.2d 407 (Fla.1958). In Dykman v. State, 294 So.2d 633 (Fla.1973) (reh. den. 1974) Cert. den. 419 U.S. 1105, 95 S.Ct. 774, 42 L.Ed.2d 800 (1975) Transferred 300 So.2d 695, the Court Although ......