Seay v. State

• Citation: 286 So.2d 532
• Decision Date: 01 November 1973
• Docket Number: Nos. 43074,43075,s. 43074
• Parties: Julius SEAY, Jr., Appellant, v. STATE of Florida, Appellee. George SILVA, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 532

286 So.2d 532

Julius SEAY, Jr., Appellant, v. STATE of Florida, Appellee.

George SILVA, Appellant, v. STATE of Florida, Appellee.

Nos. 43074, 43075.

Supreme Court of Florida.

Nov. 1, 1973.

Rehearing Denied Jan. 11, 1974.

Morton A. Orbach, So. Miami, for appellant Julius Seay; and Joel Hirschhorn, Miami, for appellant George Silva.

Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appellee.

DEKLE, Justice.

Consolidated for review are these two causes before us on direct appeals, transferred from the Third District Court of Appeal as passing upon the constitutionality of Fla.Laws Chs. 57--550 and 70--1000 ¹ relating to grand jury selection and composition in the larger counties of the state having a population of 450,000 or more. It is the selection of the grand jury which returned indictments against each of the defendants which is challenged. Seay was indicted and in a trial by jury was found guilty of Murder I and sentenced to life imprisonment for shooting and killing a security guard during a holdup of an Army-Navy Store in Miami.

Silva has previously appeared before this Court on earlier indictments by the grand jury charging this defendant with the forcible rape of two women. In the earlier appearance in State v. Silva, 259 So.2d 153 (Fla.1972), we held the petit jury venire as selected and constituted in Dade County at that time, to be constitutionally invalid, in that the selection of the list was on a so-called 'quota-system', that is, it included a fixed percentage of 15% To 19% Of qualified black citizens in Dade County who were registered voters. We stated that such proportional ratio selection had been forbidden by the U.S. Supreme Court and that we 'reluctantly followed' the mandate of that Court. Shepherd v. State, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740 (1951), reversing this Court's decision to the contrary in Shepherd v. State reported at 46 So.2d 880 (Fla.1950), on the authority of Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950).

A new venire was selected. Now Silva complains in his present motion that the Grand jury which rendered those two indictments, and the further indictment for the rape of a third woman by Silva, was improperly selected in violation of his constitutional rights.

At one point, as to the first two Silva indictments, the grand jury question was moot as to any alleged defect in the grand jury selection, since Informations filed pursuant to those indictments would be sufficient without the necessity of grand jury indictments. This was the status of such offenses during the 'hiatus' between Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and new Fla.Stat. § 921.141, effective December 8, 1972, restoring capital punishment, during which period there was no 'capital punishment' per se which required an indictment. ² Now, of course, all subsequent capital crimes require indictments and will proceed under the new Fla.Stat. §§ 775.082, 782.04, 921.141, F.S.A., eff. December 8, 1972, which this Court has just upheld as meeting constitutional requirements and U.S. Supreme Court criticisms. ³ Should such new statutes fail upon further review, the grand jury attack, as to both appellants, would again become moot.

Appellant Silva's principal assault is that he was not allowed a sufficient evidentiary hearing or the issuance of subpoenas to the present grand jurors chosen from the master list, in order to tell sufficiently, and to provide evidentiary support for, whatever alleged improprieties there might have been in the makeup of the master list from which the present grand jurors were chosen. The attempted inquiry of grand jurors who have already been duly qualified under the statutes to serve would not, in any event, be calculated to reveal the manner of their having been selected for the jury list; they would not be likely to have any knowledge of the why or wherefore of their names having been submitted. Discovery under CrPR 3.220(f), 33 F.S.A. is applicable only when the person to be deposed has 'information relevant to the offense charged.' The grand jurors could have no such personal knowledge, or they would have been disqualified in even considering the charge against the defendant. A grand jury is not, like a petit jury, subject to general voir dire inquiry. ⁴

The grand jury panel may by statute in Florida be challenged 'only on the ground that the grand jurors were not selected according to law.' Fla.Stat. § 905.03, F.S.A. Fla.Stat. § 905.05, F.S.A. then explicitly states:

'When challenge or objection to be made.--A challenge or objection to the grand jury May not be made after it has been Empaneled and sworn. This section shall not apply to a person who did not know or have reasonable ground to believe, at the time the grand jury was empaneled and sworn, that cases in which he was or might be involved would be investigated by the grand jury.' (emphasis added)

So far as the record before us reflects, it appears that both appellants have waived their asserted challenge to the grand jury panel afforded them under Fla.Stat. §§ 905.02, 905.03 and 905.04, F.S.A. ⁵ They chose not to challenge the grand jury at the proper time under the statutes and cannot do so now.

A challenge to a grand jury panel or to individual grand jurors must in Florida under Fla.Stat. §§ 905.02, 905.03 and 905.04, F.S.A. be made, either by the State or 'a person who has been held to answer' to the grand jury, prior to the empanelling of such grand jury or else such challenge is waived. This is essential to be done prior to such empanelling, as the statutes direct, in order that the court may act upon any timely challenge and, if disqualified, to discharge the panel or any individual jurors and promptly proceed to make different selections to take their places until a qualified grand jury is formed. §§ 905.06 and 905.07. A timely ruling upon challenges to the grand jury is essential to the efficient dispatch of the business of the grand jury without delay and to the prompt disposition of the cases and matters before it, assuring fair and speedy trials of those indicted and prompt discharge of those who are not. It is also expedient to the court's calendar and to the orderly and efficient dispatch of the matters before it. These are among the reasons supporting recognition of a waiver in the event the challenge to grand jurors is not timely made. The causes before the Court upon these appeals demonstrate such necessity, to avoid belated challenges and resultant delays. The statutes have provided the appropriate procedure and if not timely invoked, a challenge to the grand jury is waived.

After some inquiry had been made below, and there had been a denial of a continuance, the causes proceeded to trial with only three days left to run under the Speedy Trial Rule No. 3.191. At the trial of Appellant Silva on all three charges of rape, Silva entered pleas of nolo contendere. He first attempted to enter such plea on a 'conditional basis' subject to the outcome of his motions challenging the grand jury. Such conditional plea was correctly rejected by the able trial judge. At the time of the tender of such 'conditional' plea of nolo contendere the judge unequivocally rejected it and stated in open court to defense counsel that 'either you make the plea or you do not make the plea.' Counsel then placed the defendant on the stand and he was questioned both by the court and his counsel and after lengthy discussions in respect to the defendant's understanding of the plea and the effect thereof, the defendant was asked by his counsel whether he plead 'no contest' and the defendant responded under oath, 'Yes'. A second question by his counsel: 'Are you willing to do that?' The defendant: 'Yes'. Thereafter the further inquiry was made by Silva's counsel: 'Are you doing this voluntarily?' The defendant: 'Yes'. Mr. Hirschhorn: 'Are you doing this knowing what you are doing?' The defendant: 'Yes'.

The choice was the defendant's; he made it and plead nolo contendere without condition; the court accepted it and that ended the matter insofar as a clear plea was concerned in this record. ⁶ Further inquiry of the defendant on the stand reflected his knowledge that he would be sentenced and placed 'behind bars.' He was further asked: 'Do you understand that once you enter this plea of no contest, the judge will make it like you are pleading guilty and will sentence you as if you were guilty. Do you understand that?' The defendant: 'Yes, you told me.' Mr. Hirschhorn: 'I told you that right?' The defendant: 'Yes'.

A plea of nolo contendere can be made and accepted in a capital case provided that the usual requirement of comprehension and understanding are reflected in the record, of the full meaning of the entry of such a plea and an understanding that it is in effect a 'guilty plea' and that the defendant fully comprehends the penalty to which he may be subjected upon such a plea of nolo contendere. Full explanation and comprehension on the part of Defendant Silva is reflected in this record. See Peel v. State, 150 So.2d 281 (Fla.App.2d 1963) and discussion in Roberts v. State, 199 So.2d 340 (Fla.App.2d 1967). We are cognizant of our earlier Smith v. State, 197 So.2d 497 (Fla.1967), holding that a plea of nolo contendere cannot be accepted in a capital case. Smith was, of course, based upon then Fla.Stat. § 912,01, F.S.A. which provided that in all cases 'except where a sentence of death may be imposed, trial by jury may be waived by the defendant.' But § 912.01 has since been repealed and such exception was thereby eliminated, so that a plea of nolo contendere is now available in all cases Including capital cases.

A later attempt by Silva's counsel to withdraw the plea was rejected by the court which was a proper exercise of its discretion. CrPR 3.170(f). Counsel cites State v. Ashby, 245 So.2d 225 (Fla.1971), for his position...