State v. Silva
| Decision Date | 22 February 1972 |
| Docket Number | No. 42051,42051 |
| Citation | 259 So.2d 153 |
| Parties | STATE of Florida, Plaintiff, v. George SILVA, Defendant. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., Richard E. Gerstein, State's Atty., and William Tunkey, Asst. State's Atty., for plaintiff.
Joel Hirschhorn, Miami, for defendant.
In accordance with Rule 4.6, Florida Appellate Rules, 32 F.S.A., the Honorable Milton A. Friedman, one of the Judges of the Circuit Court for Dade County, Eleventh Judicial Circuit of Florida, has certified to this Court for instruction the questions of law set forth below. The pertinent portion of the Certificate reads as follows:
'STATEMENT OF FACTS
'The defendant Silva, has been charged by Indictment with the offense of rape pursuant to Florida Statute 794.01 to which charge the defendant has entered his plea of not guilty. Prior to arraignment, the defendant Silva, with leave of the Trial Court, reserved the right subsequent to arraignment to file Motions to Dismiss the Indictment. Subsequent to arraignment of this cause and prior to trial, said motion to dismiss or in the alternative to exclude the jury panel was filed pursuant to FRCrP 3.300, F.S. § 40.01(1), (3), and F.S. § 97.041. Subsequently, the said motion to dismiss the Indictment or in the alternative to exclude the entire jury panel was amended. The Trial Court requested memoranda of law from both parties and subsequently perused said memoranda, heard oral argument of counsel for the State and counsel for the Defendant, and pursuant to a stipulation between counsel for the State and counsel for the Defendant, examined the depositions of both Dade County Jury Commissioners, Thomas Lummus, Esq., (taken in the Eleventh Judicial Circuit Court Case, Criminal #2844, State of Florida v. Kelsey Bethel) and Joseph D'Apice (taken in the Eleventh Judicial Circuit Court Case, Criminal #2866, State of Florida vs. George Silva), which said depositions are attached hereto for the record on certification.
'The Trial Court made the following findings of fact in regards to the certified questions of law:
FINDINGS OF FACT
'1. The defendant, George Silva, duly and properly presented this Challenge to the Jury Venire list and jury panel pursuant to FRCrP 3.300, and F.S. 40.01(1), (3); and F.S. 97.041.
'2. Since at least 1966, with the appointment of Attorney Thomas Lummus as Dade County Jury Commissioner, a quota system has been employed in connection with the selection of jury lists in Dade County to either exclude or include a certain fixed percentage 15% To 19%) of the qualified black citizens of Dade County who are registered voters. Also, an attempt to keep the number of qualified women the same as qualified men has been made.
'3. Since at least April, 1971, with the appointment of Mr. Joseph D'Apice as Dade County Jury Commissioner, an even more selective, arbitrary and discriminatory method of compiling monthly jury lists in Dade County has been in use whereby a prospective juror's race, religion, sex, national origin and economic status has been subject to scrutiny by this Jury Commissioner.
'4. The findings in Paragraphs two and three are based primarily on the respective depositions of both Attorney Lummus and Mr. D'Apice which were admitted into evidence by stipulation of the attorneys for the State and the Defendant; in addition the Court takes notice of the remarks of Mr. D'Apice to both the newspapers and television reporters with respect to his method of selecting names for the jury lists.
'5. The specific sworn statements of the said Jury Commissioners which are the basis for the finding of deliberate, arbitrary and improper jury list selection are found in the transcript of the hearing on the Amended Motion at pages 23 to 30. (which is attached hereto for the record on certification and which is incorporated by reference in these findings of fact)
'6. The jury list for the month of March, 1972, was drawn by a scrutinized and systematic method and not at random.
'7. The jury commissioners select prospective jurors and compile the monthly jury list from a list of those eligible to vote, who have registered to vote in Dade County, Florida.
'8. The names of all those persons between the ages of eighteen and twenty (at the time of voter registration), are systematically excluded from the master list of those who have registered to vote and who are otherwise qualified to serve as jurors.
'9. Similarly, the names of all those persons engaged in certain occupations, such as doctors, registered nurses, and religious leaders, are systematically excluded from the master list of prospective jurors.
'10. Finally, the Court finds that no single person is able to select prospective jurors out of a list in excess of 500,00 people on the basis of his own knowledge of the prospective juror's integrity, intelligence, good character and sound judgment.
'Subsequently the Court entered the following orders pertaining to the certified questions of law:
'1. That the ruling on whether the jury venire is tained, is deferred pending certification to and adjudication by the Florida Supreme Court.
'2. That the ruling on whether 18, 19 and 20 year old registered voters should be permitted to serve on juries is deferred pending certification and adjudication by the Florida Supreme Court.
'3. That the ruling on whether F.S. § 40.01(3) is constitutional, is deferred pending certification to and adjudication by the Florida Supreme Court.
'CERTIFIED QUESTIONS OF LAW
'1. Whether the manner in which jury panels are presently selected and constituted in Dade County, Florida, as set out in the statement of facts (see above) and in the order of the Trial Judge (which is attached hereto for the record on certification) violated the due process and the equal protection clauses of the United States Constitution, Amendment Five, as made applicable to the states by the Fourteenth Amendment of the United States Constitution and Article I, Section 9 of the Florida Constitution, and/or whether the manner in which jury panels are presently selected and constituted in Dade County, Florida, as set out in the statement of facts (see above) and in the order of the Trial Judge (which is attached hereto for the record on certification) violates the Sixth Amendment of the United States Constitution as made applicable to the states by the Fourteenth Amendment and Article I, Section 16 of the Florida Constitution wherein it is provided that an accused in a criminal prosecution shall have the right to a speedy and public trial by impartial jury.
'2. Whether Florida Statutes § 40.01(1), dealing with the qualifications of jurors, wherein only persons of the age of 21 years or older are qualified to act as jurors, is constitutional in light of the Twenty-Sixth Amendment of the United States Constitution wherein it is provided that 'the right of citizens of the United States who are 18 years of age or older to vote shall not be denied or abridged by the United States or by any State on account of age.'
The order of the trial judge referred to in the first certified question contains the following:
'2. Since at least 1966, with the appointment of Attorney Thomas Lummus as Dade County Jury Commissioner, a quota system has been employed in connection with the selection of jury lists in Dade County to either exclude or include a certain fixed percentage (15% To 19%) of the qualified Black citizens of Dade County who are registered voters; and an attempt to keep the number of qualified women, the same as qualified men has been made.
'3. Since at least April, 1971, with the appointment of Mr. Joseph D'Apice as Dade County Jury Commissioner, an even more selective, arbitrary and discriminatory method of compiling monthly jury lists in Dade County has been in use whereby a prospective juror's race, religion, sex, national origin, economic status and political affiliation has been subject to scrutiny by this Jury Commissioner.
'4. The findings in Paragraphs two and three are based primarily on the respective depositions of both Attorney Lummus and Mr. D'Apice which were admitted into evidence by stipulation of the attorneys for the State and the Defendant; in addition the Court takes notice of the remarks of Mr. D'Apice to both the newspapers and television reporters with respect to his method of selecting names for the jury lists.
A question or proposition certified directly to this Court by a Circuit Court must be one which, if decided by the Circuit Court, would be reviewable on direct appeal from that Court to this Court. See Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla.1963). If this cause proceeded to final judgment the trial court would, by necessity, pass upon the validity of a state ...
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...selection system which had been in operation in Dade County at the time of the petitioners' trials was unconstitutional. State v. Silva, Fla.1972, 259 So.2d 153, 158. 3 The Florida court also ruled, however, that relief under its holding would not be available to those who had failed to com......
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