# Petition — Wainwright v. Giardino

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 965

## Text

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TABLE OF AUTHORITIES
CONTINUED

CASES PAGE

Williams v. Florida,

ee Usbs FO Clete) cnesndss 28
CONSTITUTIONAL PROVISIONS:
h Amendment, United States
PERRET ia 6 hae eeewards ere Pee
14,18,19,23

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STATUTES :

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Chapter 57-550, Laws of
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JEaALS

Opinion of

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State, 389
contained

, upon which the Third

levant portion is contained in
s Appendix at "A23-A26." The

the Florida Supreme Court

he Defendant's petition for writ

So.2d 1110 (Fla. 1980) and

in the State's Appendix at"A19-

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STATEMENT OF THE CASE

The Defendant was indicted by the
Dade County Grand Jury and convicted
after a jury trial of bribery, and
unauthorized compensation for official
behavior.! The Defendant, a white,
non-latin, filed a pre-trial motion to

dismiss the indictment on the basis that

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substantial underrepresentation of black
and latins on the grand jury venire
denied him due process and equal
protection of the law. At the time the
Defendant was indicted, grand juries in
the Eleventh Judicial Circuit of Florida
were selected pursuant to Chapters
70-1000 and 57-550, Laws of Florida.
(A30-A40). These laws required state

circuit judges to select qualified

1

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and relying on its prior decision in
Barnason v. State, 371 So.2d 680 (Fla. 3d
DCA 1979), held that the Defendant lacked
standing to allege that the composition
of the grand jury which indicted him

denied him equal protection. Giardino v.

State, 378 So.2d 302 (Fla. 3d DCA 1980)
(A21-A22). After denial of certiorari
review by the Supreme Court of Florida,
(A19-A20), the Defendant filed his
petition for writ of habeas corpus,
pursuant to 28 U.S.C. §2254, in the

District Court.

The sole claim asserted in the
petition was summarized by the United
States Magistrate in her report as

follows:

The sole claim of this petition
is that the indictment upon
which Giardino was convicted
was returned by a grand jury
which was unconstitutionally
selected and impaneled, in that

Magistrat

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a) oO O ) Ba ws) ha ° Justice Marshall, joined by
Justices Douglas and Stewart, held that,
"whatever his race, a criminal defendant
has standing to challenge the system used
to select his grand or petit jury, on the
ground that it arbitrarily excludes from
service the members of any race, and
thereby denies him due process of law."
407 U.S. at 504.

3Hurtado v. California, 110 U.S. 516
(1884).

4Peters involved a trial that took
place before this Court's decision in
Duncan v. Louisiana, 391 U.S. 145 (1968).

3407 U.S. at 496.

19

The difficulty of the precedential
value of Peters, lies not in Justice
Marshall's opinion, but rather in the
concurring plurality opinion of Justice
White, joined by Justices Brennan and
Powell. In his opinion, Justice White,
specifically noted that there were no
cases setting aside a conviction for the
arbitrary exclusions of a class of
citizens from jury service where the
defendant was not a member of the
class ,® and concurred in the opinion
only because 18 U.S.C. 243, made it a
6Less than three months earlier,
Justice White in his opinion for the
Court in Alexander v. Louisiana, 405
U.S. 625 (1972) had held that a male had
no standing to challenge the systematic
exclusion of women on his grand jury, on
the grounds that unlike the Sixth Amend-
ment right to a petit jury which is
fundamental to the scheme of justice and
is guaranteed to defendants on state
courts by the Due Process Clause of the
Fourteenth Amendment, the Fifth
Amendment's concepts of a grand jury are

not obligatory for the states. 405 U.S.
at 633-34,

, ;
federal crime for any state to disaquali

any citizen for service on a grand or
petit jury on the basis of race. 407
U.S. 505-507. Justice White believed
that to implement the strong, statutory
policy of §243, which reflected the
central concern of the Fourteenth
Amendment with racial discrimination, the
defendant should be allowed to challenge
the grand juries which indicted him on
the grounds that blacks were arbitrarily

excluded. Id. at 506-507.7

7Chief Justice Burger, along with
Justices Blackmun and Rehnquist
dissented, stating that the claim of
prejudice to the white defendant from the
exclusion of blacks from the jury was too
speculative to raise the "probability of
unfairness," required for a finding of a
denial of due process. 407 U.S. 509-11.
The dissent further stated that this
Court should not expansively read §243,
and that the ineffectiveness of the
Statutory sanctions for a violation of
the statute are for Congress to correct,
not this Court. Id. at 512-13.

21

—

this Court rendered its opinion in
Castaneda v. Partida, 430 U.S. 482
(1977). In an opinion authored by
Justice Blackmun, the Court defined

Peters v. Kiff, as a case involving

"absolute exclusion of an identiable
group.” 430 U.S. at 493. The Court then
stated that later cases had established
the principal that substantial underre-
presentation of a group constitutes a
constitutional violation as well, if it
resulted from purposeful discrimination.
Id. The Court held that "in order to
show that an equal protection violation
has occurred in the context of grand jury
selection, the defendant must show that
the procedure employed resulted in
substantial underrepresentation of his
race or of the identifiable group to
which he belongs." 407 U.S. at 494. Thus,

the opinion in Castaneda has limited

Peters to cases involving absolute
exclusion, and requires substantial
underrepresentation claims in state grand
juries to be raised through an equal

protection basis.

In his dissenting opinion in

Castaneda, Justice Powell, joined by

Chief Justice Burger and Justice
Rehnquist, expanded on this view and held
that although the Fifth Amendment right
to a grand jury does not apply to a state
prosecution, if a state chooses to
proceed by grand jury it must proceed
within the constraints imposed by the
Equal Protection Clause of the Fourteenth
Amendment. 407 U.S. at 509. Justice
Powell concluded that although, 2 state
defendant can complain that the state has
denied him equal protection where
purposeful discrimination has resulted

only in substantial rather than total

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27
entifiable group to which he belongs.

id
443 U.S. 565.

The purpose of the fair cross-sec-
tion requirement of the Due Process
Clause was derived from the Sixth Amend-
ment guarantee of an impartial jury

trial. Taylor v. Louisiana, 419 U.S.

522, 526 (1975). Allowing a defendant,
as in the instant case to challenge the
underrepresentation, not absolute exclu-
sion, of groups or races other than his
Own on a state grand jury, where the
system for selecting petit jurors is not
challenged, would ill serve the purposes
of the Due Process Clause. It would be
an irrational method of vindicating what
is in reality the equal protection rights
of the underrepresented class to
participate in the judicial process.

This Court in Carter v. Jury Commission

County, 396 U.S. 320 (1970) has

28
recognized that injunctive relief is
able to require states who provide
for grand juries, to do so in a manner
that is free of racial bias. 396 U.S. at
330. Reversal of a valid state convic-

tion should not be required.

This analysis of the essential dif-
ferences between a Due Process and Equal
Protection claim was recognized by the

Florida courts. See Giardino v. State,

378 So.2d 302 (Fla. 3d DCA 1980) (A21-A22)

and Barnason v. State, 371 So.2d 680, 681

n. 2 (Fla. 3d DCA 1979) (A23-A26).
Because the Circuit Court's opinion in
the instant has rejected this analysis,
it is a decision which conflicts with
that of a state court of final decision,

see Williams v. Florida, 399 U.S. 78

(1970); Nash v. Florida Industrial

Commission, 389 U.S. 235 (1967) and this

Court should take jurisdiction to decide

this manifestly important issue.

The State submits there is an issue
of great public importance herein in the
context of challenges to a state grand

jury system. The application by the

Circuit Court of Peters v. Ki

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Castaneda v. Partida

cannot stand. To allow the Defendant, a

poe

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absolute exclusion, of blacks and latins

on the state grand jury which indicted

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him, especially in light of the fa

the system used for selecting the petit

blur any viable distinctions between the
Equal Protection Clause and the Due Pro-
cess Clause of the Fourteenth Amendment,
rendering this Court's decisions in

Castaneda v. Partida moot. This Court

has jurisdicti
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Southern District of Florida, and was
taken under submission by the Court upon

the record and briefs on file, pursuant

N CONSIDERATION WHEREOF, It is now
here ordered and adjudged by this Court

that the order of the District Court

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appealed from, in this cause be, and the
same is hereby, REVERSED; and that this

cause be, and the same is hereby:
REMANDED to said District Court in accor-

dance with the opinion of this Court.

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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 82-5906
Non-Argument Calendar

CANDIDO GIARDINO,

Petitioner-Appellant,

LOUIE L. WAINWRIGHT, Secretary,
Department of Corrections, State of
Florida, et al.,

Respondents-Appellees.

Appeal from the United States District
Court for the Southern District
of Florida

(April 5, 1983)

Before HILL, KRAVITCH and HENDERSON,

PER CURIAM:

is whether

trial, in Florid

sought dismissal
grounds pf subst

The state

tion.

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the ground that

claim by appeari

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denied the appea

Court denied cer

Petitioner

habeas corpus in

District Court f

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tiorari.
then sought a wr

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grand jury selection process, and

as

a

Supreme
it of

; :
District

of Florida. The magistrate also deter-

mined that Giardino lacked standing, and

recommended denying the petition. On re-
iew of the entire record, including

! : 1
petitioner s obdjections to tne
a ts : ‘
Magistrate s report, the district court
; coed Os a a at
Cenied tne writ. s1arcino appeais.

Despite opinions below, which
interprets at great length the Supreme
Court's opinions in Peters v. Kiff, 407
U.S. 493 (1972) (plurality holds criminal
defendant, no matter what his race, may
challenge systematic exclusion of any

race from grand jury pool) and Castaneda

v. Partida, 430 U.S. 482 (1977) (language

ndicating scope of Peters narrowed to

bt

permit challenge only to exclusion of
one's own race), the issue presented here

is settled in this circuit. In United

States v. Perez-Hernandez, 672 F.2d 1380,

1385 (lith Cir. 1982) we analyzed the

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A7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 81-1137-CIV-EBD

CANDIDO GIARDINO,
Petitioner,

JER

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| 9
i

VS.

LOUIE L. WAINWRIGHT,
etc., and JIM SMITH,
Le.

Respondents.

THIS MATTER is before the Court on
Petitioner's Objections to Magistrate's
Report, pursuant to Title 28, United
States Code, Section 636(b)(1)(c).
Magistrate Charlene H. Sorrentino entered
the Report on November ‘9, 1981, recom-
mending that the petition for writ of

habeas corpus be denied.

Upon consideration of the Report,

the Objection, the Response and the

entire Record, as well as being advised

ORDERED AND ADJUDGED that the
petition for writ of habeas corpus is
hereby DENIED.

DONE AND ORDERED in Miami, Florida,

this 5th day of March, 1982.

Edward B. Davis

UNITED STATES DISTRICT
JUDGE

Copies To:

Anthony Musto,

Esa.
Michael Zelman,

Esa.

AQ

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 81-1137-CIV-EBD
CANDIDO GIARDINO, )
Petitioner, )
Vs. ) REPORT OF

UNITED STATES
LOUIE L. WAINWRIGHT, ) MAGISTRATE
Secretary, Department

of Corrections and )
JIM SMITH, Attorney
General, State of )
Florida,

)

Respondents.

)

Candido Giardino, who is represented
by the Public Defender for the Eleventh
Judicial Circuit of Florida, has filed a
petition for writ of habeas corpus
pursuant to 28 U.S.C. §2254, attacking
his convictions for bribery and unautho-
rized compensation for official behavior,
entered on March 9, 1979, after jury
trial in Case No. 77-4260-A in the Cir-

cuit Court of the Eleventh Judicial

A10
Circuit of Florida, at Dade County. He
was sentenced to concurrent terms of six
months to four years incarceration, and
is presently serving these sentences at
the Miami North Correctional Center,
Miami, Florida.

This cause has been referred to the
undersigned for preliminary consideration
and report, pursuant to 28 U.S.C. §636(b)
(1)(€B).

The respondent has filed a response
to an order to show cause. Both sides
have filed numerous documentary exhibits.

The sole claim of this petition is
that the indictment upon which Giardino
was convicted was returned by a grand
jury which was unconstitutionally select-
ed and impaneled, in that Blacks and
Latins were substantially underrepre-
sented in the list from which it was

chosen,

All

Giardino was indicted on June 2,
1977. On June 23, 1977, he filed a
motion to dismiss the indictment upon the
basis raised in this federal petition.
Essentially, the Florida law then in
effect permitted Circuit Judges to submit
names of individuals believed by them to
be morally fit, and grand jury venires
were formed from these submissions.

On September 12, 1977, the Circuit
Judge denied the motion to dismiss on the
basis that it was not timely filed

pursuant to Fla.Stat. §905.05. No evi-

dentiary hearing was held.

The issue was preserved by Giardino
on direct appeal. The state, in its
Brief of Appellee, argued as to this
issue that; 1) Giardino, as a white, non-
Latin male, had no standing, and 2) the
motion was not timely filed pursuant to

Fla.Stat. §905.05.

A12
The Florida Third District Court of
Appeal did not mention the issue of time-
liness, ruling instead that Giardino
lacked standing to raise the issue, and

affirming the convictions. Giardino v.

State, 378 So.2d 302 (Fla. 3 Dist. 1979).
The Florida Supreme Court denied certio-

rari. Giardino v. State, 389 So.2d 1110

(Fla. 1980).

It is apparent that all state reme-
dies have been exhausted as to the issue
raised in this petition.

It further appears that the state
courts have correctly applied the appli-
cable federal Constitutional principles.

Giardino is a white, non-Latin,
male. The thrust of his claim is that
the selection process utilized by the
State at the time of his indictment
resulted in grand juries upon which
Blacks and Latins were substantially

underrepresented.

The cases treating jury challenges

nvolve three federal Constitutional

A defendant in a federal criminal
case has both a Fifth Amendment right to
indictment by a grand jury in a felony
case and a Sixth Amendment right to trial
by an impartial jury. A defendant in a
case has no Fifth Amend-
ment right to indictment by a grand jury.
Castaneda v. Partida, 430 U.S. 482, 509
(1976) (Dissenting opinion); Hurtado v.
lifornia, 110 U.S. 516 (1884). He does,
however, have a Sixth Amendment right to

trial by an impartial jury, since that

right has been incorporated in the Four-

teenth Amendment. Duren v. Missouri, 439

ip)
(vy

57 (1979); Taylor v. Louisiana, 419
U.S. 322 (1975).

The state defendant's Sixth Amend-
ment right to trial by an impartial jury

has been the basis for cases such as

Al4
Duren v. Missouri and Taylor v.

Louisiana, supra, which hold that the

Sixth Amendment right requires trial by a
jury drawn from a fair cross section of
the community, regardless ot whether the
defendant on trial is a member of the
class suffering from substantial
underrepresentation. Those cases, of
course, dealt only with a challenge to
the petit, or trial jury, not to a grand
jury.

This is not to say that a state
defendant may never challenge the compo-
sition of a grand jury. Although he has
no Fifth Amendment right to indictment by
a grand jury, if the state provides such
a procedure, it must do so in compliance
with the Equal Protection Clause of the
Fourteenth Amendment.

The Fourteenth Amendment equal pro-
tection analysis applicable to grand
juries, however, is quite different from

the Sixth Amendment fair cross section

a &

A15
analysis applicable to petit juries. The
standard has been stated by the Supreme
Court as follows:

Thus. in order to show that an
equal protection violation has
occurred in the context of
grand jury selection, the de-
fendant must show that the pro-
cedure employed resulted in
substantial underrepresentation
of his race or of the identifi-
able group to which he be-
longs. Castaneda v. Partida,

Z30 U.S. 482, 494 (1976).

One earlier case, Peters v. Kiff,

407 U.S. 493 (1972), a plurality
opinion, permitted challenge by a state
defendant of a grand jury upon the basis
of exclusion of persons of a race other
than his. That case, however, involved
arbitrary exclusion rather than
underrepresentation, and was decided upon
a Fourteenth Amendment due process
rationale.

The Castaneda rule, quoted above, is

the federal Constitutional rule as

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A21

CANDIDO GIARDINO, Appellant
vs.
THE STATE OF FLORIDA, Appellee
No. 79-549,

District Court of Appeal of Florida,
Third District

December 4, 1979.
Rehearing Denied January 8, 1980.

Appeal from Circuit Court, Dade County;
Wilkie D. Ferguson, Jr., Judge

Flynn, Rubio & Tarkoff and Vincent J.
Flynn, Miami, for appellant.

Jim Smith, Atty. Gen., arc Anthony C.
Musto, Asst. Atty. Gen., for appellee.

Before PEARSON, HUBBART and NESBITT, JJ.

PER CURIAM.

The judgment of conviction and
sentence appealed from is affirmed upon a
holding that (a) the defendant lacks
standing to assert the claim, in a motion
to dismiss the indictment herein, that
the composition of the grand jury which

indicted him denied him equal protection,

a x 4 a 9 7A an
Barnason v. State, 371 So.2d 680
7 — | / bh Ck =

DCA 1979), and (b) the denial of the

trial presents no reversible error.

(1977); See Zamora v. State, 361 So.2d

776, 779 (Fla. 3d DCA 1978).

A23
ROBERT G. BARNASON, Appellant,
VS.
THE STATE OF FLORIDA, Appellee.

No. 78-578

District Court of Appeal of Florida,
Third District.

May 15, 1979.

-

Rehearing Denied June 15, 1979.

Bennett H. Brummer, Public Defender

and Robert L. Moore, Special Asst. Public
Defender; Greene & Cooper and Sharon L.
Wolfe, Miami, for appellant.

Jim Smith, Atty. Gen. and Susan C. Minor,
Asst. Atty. Gen. for appellee.

Before HAVERFIELD, C.J., and PEARSON and
SCHWARTZ, JJ.

SCHWARTZ, Judge.

The defendant appeals from the judg-
ment and sentence entered after a jury
found him guilty of second degree murder.
We find that neither of the contentions

he advances for reversal has merit.

A24
Barnason, a white non-Latin, first
argues, relying almost entirely on

Castaneda v. Partida, 430 U.S. 482, 97

S.Ct. 1272, 51 L.Ed.2d 498 (1977), that
Blacks and Latins were substantially un-
derrepresented on the grand jury which
indicted him.! We need not reach the
merits of this contention because, as the
majority opinion in Castaneda itself
holds, at 430 U.S. 494, 97 S.Ct. 1280, 51
L.Ed.2d 510:

'The members of the Dade County grand
jury involved in this case were chosen by
the circuit judges of the 11th circuit
acting as grand jury commissioners
pursuant to Fla.Laws Chs. 57-500 and
70-1000. The constitutionality of the
System was upheld in Seay v. State, 286
So.2d 532 (Fla. 1973) and State v.
Demetree, 213 So.2d 709 (Fla. 1968) over
challenges which did not involve the
contention and the attempted statistical
showing of purported discrimination which
were presented in this case.

A25
= .in order to show that an
equal protection violation has
cccurred in the context of
grand jury selection, the de-
fendant must show that the pro-
cedure employed resulted in
substantial underrepresentation
of his race or of the identi-
fiable group to which he
belongs.” [emphasis supplied]

Since the defendant is not a member of
the race or group allegedly underrepre-
sented on the grand jury, he clearly
lacks standing to assert the claim that
its composition denied him equal protec-

tion.2

2The rule as to standing is different
when the defendant raises a claim that
the petit jury which convicted him does
not represent a "fair cross section o the
community." Duren v. Missouri, U.$.

99 S.Ct. 664, 58 L.Ed.2d 579 (1979);
Taylor v. Louisiana, 419 U.S. 522, 95
S.Ct. 692, 42 L.Ed.2d 690 (1975). The
reason and constitutional basis for the
distinction are explained in Justice
Powell's dissenting opinion in Castaneda,
430 U.S. at 509, 510, 97 S.Ct. at 1287,
51 L.Ed.2d at 520. Compare also Peters
v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33
L.Ed.2d 83 (1972) in which the Supreme
Court held that a white defendant may

A26

Footnote 2 (cont'd) may challenge both his
grand jury and petit jury on the ground
that Blacks had been arbitrarily,
systematically, and totally excluded
solely by reason of race. As is shown by
the rationale of Justice White's separate
opinion in Peters in which Justices
Brennan and Powell joined so as to make
up a majority of the court concurring in
the judgment, 407 J.S. at 505-507, 92
S.Ct. at 2169, 2170, 33 L.Ed.2d at 95-96,
that situation is to be distinguished
from the claim of grand jury
underrepresentation involved in the
Castaneda case and in this one.

A27
JLONSTLT UTION AND STATUTORY PROVISIONS
endment V of the Constitution
ted States provides that
person shall be held to
swer for a capital, or other-
se infamous crime, unless on
presentation or indictment of
Grand Jury, except in cases
ising in the land or naval
rees, or in the litia
erein actual service in time
War or public danger; nor
all any person be subject for
e same offense to be twice
it in jeopardy of life or
mb; nor shall be compelled in
y criminal case to be a wit-
ss against himself, nor be
prived of life, liberty, or
operty, without due process
law; nor shall private
operty be taken for public
e, without just compensation.

m

0)

m
"

hh

4
4

i

mt no sé:

cr?
-

a ye 5
ts

a)

aA ren kk
—_

oO

m

yO

3 0

A
WZ
ct

11 criminal prosecutions,
accused shall enjoy the
t to a speedy and public
1, by an impartial jury of
State and district wherein
crime shall have been
tted, which district shall
been previously ascer-

3 U4

process

|

7"
ase

States:
ive
possess

depr
zen

;
.s

to
di

uris

4

ted States

3

reside.

Un
United
State
deny
41

the

A29

scribed by law shall be disqualified for
service as grand or petit juror in any
court of the United States, or of any
State on account of race, color, or
previous condition of servitude; and
whoever, being an officer or other person
charged with any duty in the selection or
summoning of jurors, excludes or fails to
summon any citizen for such cause, shall
be fined not more than $5,000.

Title 28, United States Code,

Section 2254 provides inter alia that:

(a) The Supreme Court, a Justice
thereof, a circuit judge, or a district
court shall entertain an application for
a writ of habeas corpus in behalf of a
person in custody pursuant to the
judgment of a State court only on the
ground that he is in custody in violation
of the Constitution or laws of the United

States.

A30

CHAPTER 70-1000, LAWS OF FLORIDA

Be It Enacted by the Legislature of the
State of Florida:

Section 1. Section 1 of the Chapter
57-550, Laws of Florida 1957, is amended
to read:

Section 1. The provisions of this
act shall apply and relate to all
counties in the State of Florida having a
population of four hundred fifty thousand
(450,000) or more, according to the last
previous federal census.

Section 2. Section 2 of Chapter
57-550, Laws of Florida, 1957, is amended
to read:

Section 2. There is hereby created
a grand jury commission composed of the
Circuit judges of the judicial circuit
encompassing the geographical boundaries
of all counties referred to in section 1

of this act. The chairman of the grand

A31

jury commission shall be elected by its
members and the clerk of the circuit
court shall be the secretary of the grand
jury commission.

Section 3. All laws and parts of
laws in conflict herewith are repealed.

Section 4. This act shall take
effect September 1, 1970.

Vetoed by the Governor July 5, 1970.

Passed the Senate and House over the
Veto October 9, 1970.

Filed in Office Secretary of State

October 13, 1970.

by created

Commission composed of ten
members as follows: the Clerk of the
Circuit Court, Chairman of the Board of
County Commissioners, County Supervisor
of registration, Clerk of the Criminal
Court of Record, and the County Judge
having served for the longest, continuous
term sha’ 1, each, be members of the Grand
Jury Commission, and the five (5)

remaining members of the Grand Jury

5
a

Commission shall be appointed by the

A33
Governor, who shall appoint one (1)
member each County Commissioners’
district. The term of office of each of
the appointive Grand Jury Commissioners
shall be four (4) years and upon this act
becoming a law the Governor of this state
shall appoint three (3) Grand Jury
Commissioners for a term of four (4)
years and two (2) Grand Jury
Commissioners for a term of two (2)
years, and thereafter all appointive
Grand Jury Commissioners shall be
appointed for a term of four (4) years.
There shall be a Chairman of the Grand
Jury Commission to be elected by the
members, and the Clerk of the Circuit

Court shall be the Secretary.

Section 3. The Grand Jury
Commission may employsuch clerical

assistants as may be necessary in order

that it may function properly. The Board

A34

of Commissioners of the County shall pay
such assistants such sums as said Board
may determine, and shall also furnish the
Grand Jury Commission with such supplies
and equipment as may be required in order
to permit the proper functioning of the
Grand Jury Commission. The compensation
of such assistants, and the cost of such
supplies and equipment, shall be paid out
of the Fine and Forteiture Fund of the

County.

Section 4. The grand jurors in
each County in this population
classification shall be paid the sum of
five dollars ($5.00) for each day when in
session, or in court, or such sum as the
general laws of the State of Florida may
provide for the payment of grand jurors,
whichever may be the greater. Such
payment shall be made as now provided by

law. That in addition to all other

A35
compensation provided by law, each grand

juror shall receive the sum of five (5¢)
per mile for every mile necessarily
traveled in going from home to the
courthouse, and return, when on official
grand jury duty, whether attending Court,
grand jury sessions or other grand jury
meetings or business.

Section 5. The qualifications of
persons to serve as grand jurors are as
follows:

(a) Shall be a citizen of the United
States of America, and a qualified
elector and resident of the County.

(b) Shall be of sound mind, in pos-
session of his, or her natural faculties
and not infirm or decrepit.

(c) Shall not have been convicted of
a felony or of a misdemeanor involving
moral turpitude in any court within or

without this state.

A36
(d) Shall not have any pending
criminal charges against him, or her, of
a felony or a misdemeanor involving moral
turpitude in any court within or without

this Stete.

(e) Shall be of good moral charac-
ter, and shall be free of any organized
crime or with those associated therewith.

(£) Shall not be a member of any
association or organization prohibited or
declared to be subversive by the laws of
the State of Florida or declared to be
subversive by the Attorney General of the
United States of America pursuant to law.

(g) Shall be intelligent, well
informed and able to read and write the
English language understandingly.

(h) Shall not be a public officer or
employee of the United States of America,
the State of Florida, or any county or

city therein, but this prohibition shall

A37
not apply to any person serving without
compensation, /pursuant to the provisions
of the United States Training and Service
Act, or any future draft law, nor to any
person serving in the Militia or National

Guard of this State.

(i) Attorneys-at-law shall not serve
on the grand jury, and doctors of
medicine, dentists and clergymen shall be

excused upon request.

(j) Shall not have served on a grand
jury in the County within a period of the
last five (5) years.

Section 6. The Grand Jury Commis-
sion shall meet annually, on or before
the first Monday in March of each year,
and prepare a list of five hundred (500)
names of persons qualified under the pro-
visions of this act, and morally fit to
serve as grand jurors, and shall file the

same with the Clerk of the Circuit Court;

a

A38
and the names of each of said persons
shall be written upon a separate slip of
paper and folded and placed, together
with the list itself in a secure metal
box to be known as the "GRAND JURY BOX",
which shall be securely locked and
sealed, and the names of one or more of
the Grand Jury Commissioners, together
with the date, shall be written across
the seal, and the box shall be delivered
to the Clerk of the Circuit Court, who
shall securely keep the same in a safe
place, and the key thereto shall be kept
by the Grand Jury Commission.

In preparing a list of names of pro-
spective grand jurors, as provided by
this act, the Grand Jury Commission shall
make such investigation as it may deem
necessary to determine the qualifications
and moral fitness of persons to serve
upon the Grand Jury. That upon the GRAND
JURY BOX becoming depleted of names, the

A39
Grand Jury Commission shall immediately
meet and refill the same, as provided by
this act.

If the list of names of prospective
grand jurors or the number of names of
prospective grand jurors written on slips
of paper and placed in the GRAND JURY BOX
is more, or less than five hundred (500),
it shall not affect the validity of the
GRAND JURY BOX or any Grand Jury drawn
therefrom.

Section 7. That the Grand Jury
shall be drawn as provided by law, how-
ever, the members of the Grand Jury
Commission shall be notified by the Clerk
of the Circuit Court of the time and
place of drawing the Grand Jury, and
majority of the members of the Grand Jury
Commission shall appear at the drawing of
the Grand Jury, and be present when the
seal on the GRAND JURY BOX is broken and

the box unlocked and when the Grand Jury

a

A40

is drawn, and thereafter the GRAND JURY
BOX shall be locked and resealed by the
Grand Jury Commissioners or so many
thereof as are present. The Court shall
draw from the GRAND JURY BOX a sufficient
number of names as the Court determines
to be necessary, not less than seventy-
five (75), and summonses shall be sent by
the Clerk of the Circuit Court to each
prospective grand jury, by registered
mail, return receipt requested, not less
than thirty (30) days prior to the return
date for their appearance in Court.

* * *

Section 12. This act shall take
effect immediately upon its passage and
approval by the Governor, or upon
becoming a law without such approval.

Became a law without the Governor's
approval.

Filed in Office Secretary of State
May 21, 1957.

A41
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 82-5906

CANDIDO GIARDINO,
Petitioner-Appellant,
versus

LOUIE L. WAINWRIGHT, Secretary,
etc., and JIM SMITH, Attorney
General, etc.,

Respondent-Appellees.

Appeal from the United States District
Court for the Southern District
of Florida

ORDER

( ) The motion of Appellees, LOUIE L.
WAINWRIGHT, ET AL., for stay and stay of
the issuance of the mandate pending
petition for writ of certiorari is
DENIED.

(x) The motion of Appellees, LOUIE L.
WAINWRIGHT, ET AL., for stay and stay of
issuance of the mandate pending petition
for writ of certiorari is GRANTED to and
including June 5, 1983, the stay to con-
tinue in force until the final disposi-
tion of the case by the Supreme Court,
provided that within the period above

A4S2

mentioned there shall be filed with the
Clerk of this Court the certificate of
the Cierk of the Supreme Court that tne
certiorari petition has been filed. The
Clerk shall issue the mandate upon the
filing of a copy of an order of the
Supreme Court denying the writ, or upon
the expiration of the stay granted
herein, unless the above mentioned certi-
ficate shall be filed with the Clerk of
this Court within that time.

( ) The motion of Appellees, LOUIE L.
WAINWRIGHT, ET AL., for a further stay of
the issuance of the mandate is GRANTED to
and including , under the same
conditions as set forth in the preceding
paragraph,

( ) IT IS ORDERED that the motion of
Appellees, LOUIE L. WAINWRIGHT, ET AL.,
for a further stay of the issuance of the
mandate is DENIED.

PHYLLIS KRAVITCH ari
UNITED STATES CIRCUIT J E

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1072%3A1. Public record. Not legal advice.