Jones v. State, 2D98-01473.

• Decision Date: 19 January 2000
• Docket Number: No. 2D98-01473.,2D98-01473.
• Citation: 749 So.2d 561
• Parties: Cornell E. JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

749 So.2d 561

Cornell E. JONES, Appellant, v. STATE of Florida, Appellee.

No. 2D98-01473.

District Court of Appeal of Florida, Second District.

January 19, 2000.

Pierce J. Guard, Jr., of Pierce J. Guard, Jr., P. A., Lakeland, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

Appellant, Cornell E. Jones, challenges his conviction for robbery. Appellant asserts that the trial court erred in denying his motion to suppress the "show up" identification and courtroom identification made by the victim; his motion to strike the jury panel; and his motion for mistrial. We affirm the trial court's denial of appellant's motion to suppress and motion for mistrial without further comment. We however reverse the denial of appellant's motion to strike the jury panel because the procedure used by the circuit to excuse prospective jurors was contrary to the law.

Prior to trial, appellant filed a motion to strike the jury panel. Appellant argued that several potential jurors had been improperly excused by the clerk of court. The chief judge of the Twelfth Judicial Circuit had issued a memorandum, dated February 9, 1993, to the clerk of court authorizing the excusal of prospective jurors in certain circumstances. Some of the circumstances listed were:

3. Practicing physicians, upon request; practicing attorneys who are admitted to The Florida Bar, upon request;

. . . .

5. Those who convince the Clerk's office that they, in fact, have valid vacation plans, a doctor's appointment, or other such temporary problem for that week, may be postponed to another week;

6. Persons who can demonstrate extreme hardship regarding their occupation, their physical condition, or for reasons of public necessity.

In all other cases, the permission of a judge must be obtained before excusing a summoned juror.

Appellant argued that the procedures outlined in the chief judge's memorandum were contrary to the law and were an improper delegation of a judicial function. The trial court ruled that appellant's motion was untimely and denied the motion. Section 40.013, Florida Statutes (1997), contains nine circumstances in which a prospective juror may or must be excused from jury service. Only subsections (5) and (6) implicate the trial court's discretion. See Hoskins v. State, 702 So.2d 202, 205 (Fla.1997)

(stating only subsections (5) and (6) implicate the court's discretion). Section 40.013(5) and (6) provides that:

(5) A presiding judge may, in his or her discretion, excuse a practicing attorney, a practicing physician, or a person who is physically infirm from jury service, except that no person shall be excused from service on a civil trial jury solely on the basis that the person is deaf or hearing impaired, if that person wishes to serve, unless the presiding judge makes a finding that consideration of the evidence to be presented requires auditory discrimination or that the timely progression of the trial will be considerably affected thereby. However, nothing in this subsection shall affect a litigant's right to exercise a peremptory challenge.

(6) A person may be excused from jury service upon a showing of hardship, extreme inconvenience, or public necessity.

§ 40.013(5), (6) Fla. Stat. (1997). Subsections (5) and (6) correspond to several of the circumstances listed in the chief judge's memorandum. Thus, the chief judge's memorandum authorized the clerk of court to excuse jurors under the discretionary authority granted trial judges under subsections (5) and (6). This was clearly error.

In Hoskins v. State, 702 So.2d 202, 205 (Fla.1997), a defendant filed a "motion with reference to jury procedure" arguing that his jury was unfairly selected because the chief judge had issued an administrative order that authorized the clerk of court to excuse jurors under certain circumstances which included the conditions listed in section 40.013(5), Florida Statutes (1995). The supreme court held that the motion was untimely because the jurors at issue had already been excused, and the defendant's motion was not a challenge to the jury panel itself. See id. at 205-06. The supreme court however stated:

In reaching this decision, however, we emphasize that we are in no way sanctioning any process whereby a clerk of court is to carry

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