Phillips v. State , 2016 Fla. App. LEXIS 3368 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAMES DAVID PHILLIPS, )
)
Petitioner, )
)
v. ) Case No. 2D15-1698
)
STATE OF FLORIDA, )
)
Respondent. )
)
Opinion filed March 4, 2016.
Petition for Writ of Certiorari to the Circuit
Court for Polk County; John K. Stargel,
Judge.
James David Phillips, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa, for
Respondent.
ALTENBERND, Judge.
James David Phillips filed a petition seeking certiorari review of what he
thought was a judicial order entered on March 13, 2015. Although his confusion is
understandable, we conclude that the postconviction court has taken no action from
which Mr. Phillips is currently entitled to certiorari relief. Accordingly, we deny the
petition.
Mr. Phillips was convicted by a jury and sentenced to life imprisonment for
capital sexual battery in 2008. In August 2014, without prior court approval, Mr. Phillips
sent a letter to one of the jurors in his case. The letter generally discussed the case and
sought information from the juror about possible improper information received by the
jury during a lunchtime break. When the juror received the letter, the juror contacted the
state attorney. The State then filed a motion for rule to show cause why Mr. Phillips
should not be held in indirect criminal contempt for failure to abide by the procedures in
Florida Rule of Criminal Procedure 3.575.1
Our record does not contain a transcript of the hearing, but it is undisputed
that the trial court provided Mr. Phillips with counsel for a contempt hearing. A
document was created as a result of that hearing on a "memo of sentence/order of the
court" or "snapout," the use of which this court has discouraged for more than twenty
1
Rule 3.575 provides:
A party who has reason to believe that the
verdict may be subject to legal challenge may move the
court for an order permitting an interview of a juror or jurors
to so determine. The motion shall be filed within 10 days
after the rendition of the verdict, unless good cause is shown
for the failure to make the motion within that time. The
motion shall state the name of any juror to be interviewed
and the reasons that the party has to believe that the verdict
may be subject to challenge. After notice and hearing, the
trial judge, upon a finding that the verdict may be subject to
challenge, shall enter an order permitting the interview, and
setting therein a time and a place for the interview of the
juror or jurors, which shall be conducted in the presence of
the court and the parties. If no reason is found to believe
that the verdict may be subject to challenge, the court shall
enter its order denying permission to interview.
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years.2 Handwritten notations indicate that a status hearing was held, that the State
moved to withdraw its motion for rule to show cause, and that the postconviction court
granted that motion. At that point, despite the absence of a pending motion, the
snapout reflects that "RC is discharged at this time." Language above this "discharge,"
starting with an asterisk and ending with an arrow to place the language below the
discharge, states: " *court orders deft (not) to have any contact w/ Jurors or Alt.
Juror* ." Below the arrow, this "order" continues with the language "except by
motn and order of the court according to the rules and law." This snapout is dated
March 13, 2015, and is signed by a deputy clerk. The signature line for a circuit judge is
blank.
Mr. Phillips interprets this document to be a circuit court order barring him
from contacting jurors. He believes the order is a violation of his First Amendment
rights. He timely filed a petition for writ of certiorari challenging the order.
Because the document was not a signed and rendered order, this court
relinquished jurisdiction to the extent necessary for the circuit court to file a signed,
written order. The circuit court entered a signed, written order in October 2015.
The order confirms that the State withdrew its motion because it could not
prove that the defendant knew he had an obligation to obtain prior approval for such
2
See Zaborowski v. State, 126 So. 3d 405, 407 n.2 (Fla. 2d DCA 2013);
Thar v. State, 8 So. 3d 1204, 1205 n.1 (Fla. 2d DCA 2009); Cochrane v. State, 997 So.
2d 1221, 1223-24 (Fla. 2d DCA 2008) (Altenbernd, J., concurring); Woods v. State, 987
So. 2d 669, 672 (Fla. 2d DCA 2007); Akridge v. Crow, 903 So. 2d 346, 350-51 (Fla. 2d
DCA 2005); Sutton v. State, 838 So. 2d 616, 617 n.1 (Fla. 2d DCA 2003); Heath v.
State, 840 So. 2d 307, 308-09 (Fla. 2d DCA 2003); Monroe v. State, 784 So. 2d 1163,
1164 (Fla. 2d DCA 2001); Richardson v. State, 761 So. 2d 1232, 1233 (Fla. 2d DCA
2000); Monroe v. State, 760 So. 2d 289, 289-90 (Fla. 2d DCA 2000); Peterson v. State,
730 So. 2d 830, 831 (Fla. 2d DCA 1999).
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contact with a juror when he sent his letter. The order explains that despite the fact that
the motion had been withdrawn, Mr. Phillips pressed the court for a ruling on whether he
was being ordered not to contact jurors. The court then orally instructed Mr. Phillips to
follow the law if he wanted to contact jurors. The court concluded at the time of the
hearing that it should not enter a written order given the fact that the State had
withdrawn its motion. The order further explains: "Unbeknownst to the Court, the clerk
inserted the statement 'Court orders defendant not to have any contact w/jurors except
by motn (sic) and order of the court according to the rules and law.' " The written order
then concludes:
Accordingly, it is ORDERED AND ADJUDGED that
the Law and Rules of Court apply to this Defendant and
must be followed. The Defendant was specifically made
aware of the existence of Rule 3.575 regarding juror
interviews. The Court is of the opinion that an interrogatory
interview in the form of a letter is subject to the rule, and that
the word "may" in the first sentence of the rule is not
intended to be permissive, rather is intended to be restrictive
and provide an avenue under which parties shall proceed if
they wish to interview jurors. The purpose for the rule is well
founded and deeply-rooted in the long-standing need to
protect jurors privacy and safety. The minimal restrictions on
a defendant's First Amendment rights are far outweighed by
the need for jurors to remain involved in the process.
Repeated contact by the very defendants who are
incarcerated or on probation for the cases in which the juror
fulfilled their civic duties could place jurors in fear to even
appear for jury duty and undermine the system that the
Constitution promises.
We are thus at the odd procedural posture of reviewing an initial "order"
that was not actually an order, followed by an actual order that the postconviction court
created only to comply with this court's order and in which the postconviction court
explains that its true intent was not to enter any rendered order whatsoever. We are
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inclined to agree with the postconviction court that rule 3.575 was written to regulate the
conduct of both attorneys and parties when they wish to contact jurors for a "challenge"
to a verdict even at the postconviction stage or for a petition for writ of habeas corpus.3
There does not, however, appear to be any well-considered decision on the First
Amendment issue that Mr. Phillips raised.
Accordingly, we decline to treat the postconviction order coerced by this
court as a binding ruling from that court. As a practical matter, it does little more than
tell Mr. Phillips to obey the law. The actual document challenged by the petition was not
an order of a court that this court can review.
There may be more than one procedure that Mr. Phillips could elect to use
at this point. If he wishes to pursue this matter, it may be prudent for him to file a
motion to interview jurors under rule 3.575 claiming a First Amendment right to contact
jurors at this time without regulation by the court or without establishing the grounds
necessary in the days following a verdict and before a direct appeal. He can then
obtain a ruling that, if adverse to him, he can seek to review in this court by petition for
writ of certiorari.
3
The supreme court has recognized the use of rule 3.575 as an
appropriate vehicle for interviewing jurors in postconviction proceedings. See Foster v.
State, 132 So. 3d 40, 65 (Fla. 2013) (holding the postconviction court did not abuse its
discretion in denying the defendant's motion to interview a juror, which the defendant
filed more than ten years after his judgment and sentence became final, because the
defendant merely raised speculative and conclusory allegations of juror misconduct); cf.
Van Poyck v. State, 91 So. 3d 125, 128-30 (Fla. 2012) (affirming the denial of a claim of
newly discovered evidence of juror misconduct because the evidence, which was
premised on juror affidavits obtained by the defendant through a private investigator,
could "be likened to instances where a juror renounces his or her decision after a verdict
has been entered," and approving the postconviction court's admonishment of counsel
for the defendant circumventing rule 3.575 by hiring a private investigator to obtain
those affidavits).
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Petition for writ of certiorari denied.
KELLY and BLACK, JJ., Concur.
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