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IN THE DISTRICT coURT oF APPEAL Filed
SECOND DISTRICT OF F'DOit~ay of S. V'k ,203 __
Barbara S Butler, Cler1<
Hendry County, Fl
STATE OF FLORIDA, By_ _-;;~::-±,->k,-­
OiiiiliiYt1iiili
PETITIONER,
v.
VICTORIA PAGE-MARTIN,
RESPQNDENT.
Case No. 2D13-4064
Circuit Court case No. 2008-CF-802
20th Judicial Circuit, Hendry County
PETITION FOR WRIT OF CERTIORARI
Pursuant to Rule 9.100 of the Florida Rules of Appellate
Procedure, Petitioner, the State of Florida, respectfully
petitions this court for writ of common law certiorari to review
a non-final order of the circuit court of the Twentieth Judicial
Circuit denying Petitioner's request of a for cause challenge
pursuant to Florida Statute 913.03 (3) and denying Petitioner's
request to use all peremptory challenges prior to the jury panel
having been sworn. In support of this Petition, the State
asserts:
X. JUrisdiction
Jurisdiction to review this petition for writ of certiorari
is founded upon Florida Rule of Appellate Procedure 9. 030 (b) (3),
9.100(c) (1), and Article V, Section 4(b) (3) of the Florida
constitution. The circuit court improperly denied Petitioner's
~
7ECOPY
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2. request of a for cause challenge pursuant to Florida Statute
913.03(3), thereby forcing the State of Florida to use a
peremptory challenge. In addition, the circuit court improperly
denied the Petitioner's right to use all peremptory challenges
prior to the jury being sworn. As the circuit court departed
from the essential requirements of law, and this is a non-final
order, certiorari would lie.
II. Facts
Petitioner, the State of Florida, is the prosecuting
authority, and Respondent is the Defendant. On December 10,
2008, Respondent, Victoria Page-Martin, was charged by way of
Information with one count of Aggravated Child Abuse, a first
degree felony and one count of Aggravated Child Neglect a second
degree felony. On July 9, 2013 a second amended information was
filed in the above referenced case charging the Respondent with
one count of Aggravated Child Abuse, a first degree felony; one
count of Aggravated Child Neglect a second degree felony and one
count of Child Neglect a third degree felony. On July 29, 2013
the Respondent was brought to trial on the charges from the
second amended information. The trial began with voir dire.
After questioning of the perspective jurors by the State
and Defense the court, Honorable Judge Donald H. Mason, excused
the venire panel and the parties began the selection process.
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3. (App. 2). Judge Mason began with for cause challenges of the
first six people on the venire panel. (App. 2-3).
At the conclusion of the jury selection process the
Petitioner and Respondent had agreed on six jurors. The parties
requested two alternate jurors anticipating a ten day trial.
(App. 9). The court gave each side two additional peremptory
strikes, one per alternate juror pursuant to Florida Rule of
Criminal Procedure 3. 350 (d) . (App. 11-12). The Petitioner
requested a cause challenge for undue hardship pursuant to
Florida Statutes 913.03(1) and 40.013(6) on Juror 15 which was
denied. (App. 9-10). The Petitioner then used one of the two
peremptory strikes permitted by the court on Juror 551. (App.
10) . The Petitioner again requested a cause challenge for undue
hardship pursuant to Florida Statutes 913.03(1) and 40.013(6) on
Juror 72 which was denied. (App. l.0-12}. Because the court
denied the cause challenge, Petitioner was required to use its
final additional peremptory challenge on Juror 72. (App.
12,35). Juror 93 was excused for cause. (App. 12~13). Juror
20 was struck by Respondent using one of the two extra
peremptory strikes. (App. 13} . At that point~ Juror 14 became
the potential second alternate. The Petitioner made a request
for a for cause challenge on Juror 14 pursuant to F. s.
913.03(3). (App. 14-16,108-109). The court denied the cause
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4. challenge and Juror 14 became part of the jury panel as a second
alternate juror. (App. 16).
The court asked the Respondent if the jurors as selected
were acceptable and the Respondent responded in the affirmative.
(App. 16). Similarly, the court asked the Petitioner if the
jurors were acceptable. The record reflects that the Petitioner
was not given the opportunity to fully respond to the court's
inquiry. (App. 16). However, the record also reflects that the
panel was not acceptable to the Petitioner. (App. 16}.
At this point, the Petitioner had not used all of its
peremptory strikes. Specifically, though the Petitioner had
exhausted both of its peremptory strikes with respect to the
alternate jurors, two of the allotted six peremptory strikes
originally granted to the Petitioner had not been used and,
therefore, remained available for use by the Petitioner as 'back
strikes• . (App. 34-35). The Respondent had three peremptory
strikes remaining. Specifically, because the Respondent had
used only one of the peremptory strikes granted for selecting
the alternate jurors, and because the Respondent had used three
of the peremptory strikes originally granted by the court, the
Respondent had three peremptory strikes, or 'back strikes' ,
available.
When jury selection had concluded, but before swearing in
the jurors selected to try the case, Juror 12 asked to be
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5. excused from jury duty. (App. 17-18). Juror 1.2 informed the
court that he would be unable to serve as a juror because he was
the sole provider of a household that included a six month old
child and his financial situation would distract him during the
trial preventing him from being a fair and impaz:tial juror.
(App. 18·19,46-56,57-59).
The Petitioner objected to the dismissal of Juror 12 for
cause. (App. 19). Specifically, the Petitioner objected to the
court ·dismissing Juror 12 on the basis of hardship because
earlier in the voir dire process the court denied the
Petitioner's cause challenges to potential jurors when those
challenges were lodged on the basis of juror hardship. (App.
19-20). FUrthermore, because the court refused to recognize
juror hardship as cause to dismiss potential jurors during voir
dire, the Petitioner was forced to use its limited number of
peremptory challenges for these individuals and thereby severely
limited in its ability to select a jury. {App. 9-12,19-20, 35).
Notably, both the court and the Petitioner recognized that
leaving Juror 12, a person with a stated hardship, on the jury
had the potential to affect the outcome of the trial because the
hardship may influence a juror who has been compelled to serve
to render a verdict for or against a party based upon their
difficulty in serving rather than the evidence presented at
trial. (App. 20-22) • However, the court had already dismissed
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6. the other potential jurors, who had since left the courthouse,
and stated its inclination to dismiss Juror 12 because of the
hardship. (App. 21-22}. Consequently, the Petitioner requested
a brief recess to research a remedy. (App. 22).
After the recess, the Petitioner argued that the court had
erred in denying the Petitioner'-s initial cause challenges and
thereby prejudiced the Petitioner by forcing the Petitioner to
use its limited peremptory challenges. {App. 24-30). The
Petitioner then requested additional peremptory strikes. (App.
30}. The Respondent objected. {App. 30-32). The court
requested a portion of the proceedings be transcribed for his
review the following morning and ordered the clerk to call in
another venire panel for the following morning. (App. 32-33).
Without swearing them in, the Court dismissed the eight selected
jurors for the evening having them return the next morning.
(App. 32-33).
Upon review of the transcript the Court reaffirmed its
denial of the Petitioner's for. cause challenge of Juror 36.
(App. 41-44}. The Court then moved on to the second issue, what
to do about Juror 12. (APP· 44). Juror 12 was brought back
into the courtroom for further inquiry of his stated hardship.
(App. 46-59} . After argument by both the Petitioner and
Respondent the Court excused Juror 12 for cause. (App. 67-68).
The Court decided to move Juror 15 onto the jury panel leaving
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7. , . . - - - - - - - - - - · - · ·
Juror 14 as the sole alternate. The Petitioner objected to the
panel and requested use of its remaining peremptory strikes or
'back strikes' . {App. 68-69). After argument by the Petitioner
citing the prevailing caselaw, the Court denied the Petitioner's
request. (App. 1, 72-76). Based on the denial of the
Petitioner's request to use its back strikes and the denial of a
for cause challenge to Juror 14 the Petitioner files this
Petition for Writ of Certiorari.
IU. NATURE OF RZLIE!' SOUGH~
The Petitioner respectfully seeks an Order from this Court
directing the circuit court to: quash the circuit court's order
with respect to Juror 14; strike Juror 14 for cause; and allow
the Petitioner to exercise its remaining peremptory strikes and
if necessary summon a new venire panel for voir dire. (App. l.) .
or, in the alternative, the Petitioner respectfully requests
this Court order the circuit court strike the current jury panel
and allow voir dire of a new venire panel. -As the current jury
panel has not been sworn jeopardy has not attached. See, Allen
v. State, 41 So. 593 (Fla. 1906) and Johnson v. State, 685 So.
2d 1369 {2nd DCA, 1996) .
IV. ARGUMBIIT
The trial court's decision to ignore binding precedent was
a departure from the essential requirements of law.
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8. First, the trial judge erred in denying the Petitioner's
for cause challenge of Juror 14. {App. 14-16). Florida Statute
913.03{3) states that one of the grounds on which a for cause
challenge may be made is, "if the juror has conscientious
beliefs that would preclude him or her from finding the
defendant guilty.H In the instant case, when Juror 14 was asked
specifically could he judge the evidence and the facts of the
case rather than the person on trial Juror 14 responded, "No."
(App. 108-109). When asked to further explain Juror 14 stated,
"...I was raised that you don't judge nobody. {sic] Just how you
see them or treat people like you want to be treated,-" {App.
109}. Juror 14 stated contentious beliefs regarding judging an
individual specifically that he was raised not to do it. Juror
14 would not be able to sit in judgment of another person which
would hinder his ability to determine a fair and impartial
verdict. Juror 14 also stated he could not judge the facts
which is the job of a juror. {App. 108-109). Both the Court
and Respondent also noted Juror 14' s responses during
Petitioner's argument challenging for cause. (App. 14-15).
Based on these issues there was an ob:vious question of Juror
14's competency to be a juror. Florida caselaw is clear when
dealing with a close call on the issue of juror competency,
these types of situations should be resolved in favor of
removal. Carratelli v. State, 832 So. 2d 850 {4th DCA, 2002),
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9. Martinez v. State, 795 So. 2d 279 (3rd DCA, 2001) , Juede v.
State, 837 so. 2d 1114 (4th DCA, 2003).
Secondly, the trial judge's decision to deny Petitioner's
right to use all peremptory challenges prior to the jury being
sworn violates an essential requirement of law. Florida Rule of
Criminal Procedure 3.310 provides that a party may challenge a
prospective juror any time before the jury is sworn. The
Florida Supreme Court has reaffirmed this right in Gilliam v
State, 514 So. 2d 1098 (Fla. 1987); Tedder v. Video Electronics,
!!!£_., 491 so. 2d 533 (Fla. 1996); and Jackson v. State, 464 So.
2d 1181 (F1a. 1985) . In these cases the Florida Supreme Court
has consistently held that a trial judge has no authority to
infringe upon a party's right to challenge any juror, either
peremptorily or for cause prior to the time the jury is sworn.
Jackson, 414 So. 2d at 1832.
Further, the Florida Supreme Court has held that if the
trial court denies this right it is per se reversible error.
Gilliam, 514 so. 2d at 1099. In Gilliam the defendant did not
participate in voir dire and declined to challenge any of the
juror_s during the selection process. Id at 1099. The defendant
instead sought to strike the entire panel after they had been
selected, but prior to being sworn. Id. The trial court denied
Gilliam's request and the panel was sworn, the Supreme Court on
review held the trial court violated FL.R.Crim.Pro. 3,310 and
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10. the defendant's conviction for first degree murder was
overturned.
In the present case the trial court denied the Petitioner's
request to exercise its remaining two peremptory challenges
based on Respondent's objection and the Court 1
s releasing all
other potential jurors. (App. 1, 68-69, 76-78). Both the State
and Defendant are entitled to a fair and impartial jury,
however, a defendant in a criminal case is not entitled to any
particular juror or jury. North v State, 65 So.2d 77 at 79
(Fla. 1952}. Following this principal of law the Respondent's
objection to the Petitioner's peremptory challenge has no basis
under the law. Additionally, this Court in Shelby v. State, 541
So. 2d 1219 (Fla. 2d DCA 1989), addressed a factually similar
issue. In Shelby both the State and Defense had accepted the
jury panel on the afternoon prior to the trials scheduled start
date. Shelby, 541 So. 2d at 1220. The Court in Shelby did not
swear in the jury panel, but directed the panel to return the
next morning to be sworn. Id. The next day, prior to the court
swearing in the jury the defendant moved to strike one of the
panel, using his last peremptory challenge. Id. The trial
court denied the defendant •s request and swore the panel. Id.
on appeal this Court held that the trial court 1 s failure to
grant defendant 1
s peremptory challenge was reversible error.
Id. This ruling was based on Fl.R.Crim.Pro. 3.310 citing its
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11. explicit language that a party is entitled to challenge a juror
until the jury has been sworn. Id.
A number of Courts have held that a litigant 1 s right to
exercise unfettered peremptory and cause challenges includes the
right to view the panel as a whole before the jury is sworn, is
an essential component of the right to a fair trial. Duncan v.
Louisiana, 391 U.S. 145, 149 (1986); Grant v. State, 429 So. 758
(Fla. 4th DCA 1983) . An additional similar case is Mack v.
State, 620 So. 2d 804 (Fla. 5th DCA 1993), the jury was selected
one day but was not sworn. The next day the defendant moved to
strike two of the accepted jurors by using peremptory
challenges. Mack 620 So. 2d at 804. The trial court in Mack as
in the case at issue denied the defendant's challenges because
there were no other available jurors. Id. (App. 1). The Fifth
Circuit relying on FL.R.Crim.Pro 3.310; Gilliam v. State, 514
So. 2d 804 (Fla. 1987); and Shelby v. State, 541 So. 2d 1219
(Fla. 2d DCA 1989); held that it was per se reversible error for
the Court to deny the defendant's exercise of peremptory
challenges.
V. CONCLUSI:ON
The Petitioner has demonstrated the elements necessary to
justify this Court's issuance of a writ of certiorari, and
therefore respectfully requests this Court direct the circuit
court to: quash the circuit court's order with respect to Juror
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12. 14; strike Juror 14 for cause; and allow the Petitioner to
exercise its remaining peremptory strikes and if necessary
summon a new venire panel for voir dire. {App. 1) . Or, in the ·
alternative, the Petitioner respectfully requests this Court
Order the circuit court strike the current jury panel and allow
voir dire of a new venire panel.
SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing was furnished by U.s. mail to the Honorable James
Birkhold, clerk of the Second District Court of Appeal, P. 0.
Drawer 327, Lakeland, Florida 33802; the Office of the Attorney
General, concourse center #4, 350? East Frontage Road, Suite
200, Tampa, Florida 33607; the Honorable Donald H. Mason,
Circuit Judge, Hendry County Courthouse, LaBelle, FL 33935;
Andrew D. Washer, Attorney for the Defense, The Courthouse
Square, 208 S.E. 6th Street, Fort Lauderdale, Florida 33301; Jay
Brizel, Attorney for the Defense, 11922 Fairway Lakes Drive,
Suite 3, Fort Myers, FL 33919on September 6, 2013.
By:
Respectfully submitted and served,
STEPHEN B. RUSSELL
STATE ATTORNEY
Jill E. Cabai
Florida Bar No. 0043455
Assistant State Attorney
Office of the State Attorney
Twentieth Judicial Circuit
Post Office Box 387
LaBelle, FL 33937
(863) 612-4920
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13. CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing was printed in courier
New 12-point font and thereby satisfies the font requirements of
Florida Rule of Appellate Ptocedure 9.100(1).
c::AGA .Jill E. Cabai
Assistant State Attorney
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