Florida/Georgia Personal Injury & Workers Compensation

...prohibits disclosure by certain persons of testimony given before a grand jury "except when required by a court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that of the witness given before the court * * *." F.S. § 905.17, F.S.A....

...The function of the grand jury is to obtain evidence as to a charge of crime, by the State, and to determine whether the person so charged should be brought to trial. See id. Generally, the defendant is not even present unless testifying as a witness. See § 905.17(1), Fla....

...prosecuting attorney were both present before the grand jurors at the same time for the purpose of examining witnesses in their presence and giving the grand jurors legal advice regarding the offense lodged against the appellant contrary to F.S.A. §§ 905.17 [1] and 905.19. [2] Appellant's position is that F.S.A. § 905.17 under the heading "Who may be present during sessions of the grand jury" should be strictly construed....

...hing its violation. However, a statute relating to procedure is remedial in nature in that it gives a remedy and tends to abridge some defect or superfluities of the common law. To give effect to the evident legislative intent in construing F.S.A. §§ 905.17 and 905.19 we construe the statutes as being remedial in nature granting authority to the prosecuting attorney to appear before the grand jury. Without this authority the purpose and duties of the prosecuting attorney would be very much circumscribed. The legislature in promulgating F.S.A. §§ 905.17 and 905.19 similarly imposed official duties upon prosecuting attorneys, and the presence of the assistant prosecuting attorney with the prosecuting attorney before the grand jury during the examination of evidence affords no grounds for se...

...ination of witnesses and advising on questions of law. We have carefully considered the other points raised on appeal by the appellant and find no error. Affirmed. ANDREWS, Acting C.J., and McLANE, RALPH M., Associate Judge, concur. NOTES [1] F.S.A. § 905.17 "Who may be present during sessions of grand jury....

...authority. When this is apparent punishment for contempt might be justified. Indeed the Florida Legislature has by statute announced two situations in which grand jurors and, conceivably, an entire grand jury may be adjudged guilty of contempt. See Section 905.17 and Section 905.27, Florida Statutes, F.S.A....

...Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee. *592 WALDEN, Chief Judge. This appeal is from a final judgment and sentence finding Roger H. Harper, appellant, guilty of criminal contempt pursuant to F.S. Section 905.17, F.S.A....

...ing interrogation of certain witnesses. Pinter was administered the oath of a witness and remained inside the grand jury session during the interrogation of several witnesses. Pinter's presence inside the grand jury session was expressly contrary to Section 905.17, the applicable portion of which says: "No person shall be present at the sessions of the grand jury except the witness under examination, the prosecuting attorney, the court reporter or stenographer, and the interpreter, if any....

...Any person violating either of the above prohibitions may be held in contempt of court." Based on affidavits and sworn testimony, Harper was ordered to show cause why he should not be adjudged in contempt for, "* * * [V]iolation of Florida Statute 905.17, thereby unlawfully hindering and interfering with the due process of law and with the administration of justice....

...* * [U]nder that Statute, I don't see how there could be any other finding except in contempt as charged." We reverse. It is our view from the language employed and the proceedings generally that the trial court erroneously concluded that the terms of Section 905.17 destroyed trial court discretion and compelled a finding of contempt upon mere showing of a violation of the statute. The final sentence of Section 905.17 provides that "[a]ny person violating either of the above prohibitions may be held in contempt of court." (Emphasis added.) In construing statutes, it is the duty of a court to give a word its plain and obvious meaning....

...1963, 148 So.2d 64, 66: "* * * It must be assumed that the Legislature of this state must know the plain and ordinary meaning of words and that the word `may' when given its ordinary meaning, denotes a permissive term rather than the mandatory connotation of the word `shall'." Thus, Section 905.17 provides only that violators may be found in contempt; it does not constitute a mandate for conviction....

...ng such signature. Presumably the justification for the signature appears in the Florida statutes that require the aforementioned officers to wait upon the grand jury as advisors, as examiners of witnesses, and to draw indictments. (See §§ 905.16, 905.17, 905.19, 905.22, 27.02, 27.16, 27.21, & 27.22, Fla. Stat.) Vagueness remains concerning the significance of the signature, however. Since the prosecuting attorney cannot be present while the grand jury is deliberating or voting (see section 905.17, Florida Statutes) and has no voice in the decision of whether an indictment is found (see section 905.26, Florida Statutes), a logical question arises concerning the necessity for the prosecuting attorney's signature on the indictment....

...ould not be deemed a contempt. Moreover, even if he finds that a witness is without adequate excuse under the rule, the use of the permissive word "may" in the rule indicates that a finding of contempt is still not mandatory. Recently, in construing Section 905.17, Florida Statutes, F.S.A., which provides that a grand juror failing to comply with the prohibitions of the statute " may be held in contempt of court" (emphasis added), this court in Harper v. State, Fla.App. 1968, 217 So.2d 591, concluded: "* * * Section 905.17 provides only that violators may be found in contempt; it does not constitute a mandate for conviction....

...Several indictments were returned against Floyd T. Christian. He filed motions to dismiss the indictments on the grounds that, 1. The simultaneous presence of State Attorney Austin and his two assistants *297 before the grand jury constituted a violation of Fla. Stat. § 905.17(1) and 905.19, F.S.A., and 2....

...rom office as the Commissioner of Education. However, the District Court held that the indictments were subject to the motion to dismiss because the Assistant State Attorneys simultaneously appeared before the grand jury in violation of Fla. Stat. §§ 905.17 and 905.19, F.S.A....

...Therefore, if this objection is not presented by a motion to dismiss, it is taken to have been waived. Cr.P.R., Rule 3.190(c). The objection was timely made in the case sub judice by motion to dismiss. The District Court held that the trial court erred in denying this motion. We agree. Fla. Stat. § 905.17(1), F.S.A., provides as follows: "No person shall be present at the sessions of the grand jury except the witness under examination, the state attorney or his designated assistant, the court reporter or stenographer, and the interpreter....

...State Attorneys of the Fourth Judicial Circuit properly assigned to the Second Judicial Circuit, they were nevertheless without legal right to appear simultaneously with the Assigned State Attorney during the Grand Jury proceedings. Florida Statute 905.17(1) is specific as to who may be present at sessions of the Grand Jury and the reference there to the State Attorney and his designated assistant is in the disjunctive....

...prosecuting attorney were both present before the grand jurors at the same time for the purpose of examining witnesses in their presence and giving the grand jurors legal advice regarding the offense lodged against the appellant contrary to F.S.A. §§ 905.17 and 905.19." (p....

...atute, when a construction based on the strict letter of the statute would lead to an unintended result and would defeat the evident purpose of the legislation. Payne v. Payne, 1921, 82 Fla. 219, 89 So. 538." (pp. 317, 318) We hold that Fla. Stat. §§ 905.17(1) and 905.19, F.S.A., authorized the presence of the State Attorney and one or more lawful and qualified Assistants to be present at the sessions of the Grand Jury to examine witnesses and give legal advice about any matter cognizable by the Grand Jury....

...See Attorney General's opinion 054-57, 1953-54 Biennial Report of the Attorney General 698. To the contrary, investigatory interrogation without the presence of counsel has long been recognized and required in Grand Jury proceedings, see Fla. Stat. 905.17, 1963, F.S.A., and is at least permissive in the analogous investigations by public prosecutors....

...Must grand jury proceedings in Florida be recorded as a matter of law? Our answer is succinct — the law of this state does not require such recordation. The problem is conceded to be one of first impression in Florida. Grand juries are controlled by F.S. 905 (1971), F.S.A. The defendant relies upon F.S. 905.17, F.S.A., which provides: "905.17 Who may be present during session of grand jury....

...rand jury shall not disclose the testimony of a witness examined before the grand jury or other evidence received by it... ." (Emphasis added.) as authority for the proposition that grand jury testimony must be recorded. The reliance is misplaced. F.S. 905.17, F.S.A., refers to who may be present at grand jury sessions — rather than who must....

...In the instant case, however, the subject indictment was proper, and should not have been quashed when no constitutional rights were abrogated, no Florida law was contravened and no request for recordation was made by Mrs. McArthur. If there is to be a change in what we conceive to be the clear provisions of F.S. 905.17 and 905.27, F.S.A., Laws of 1971, it is our view that such is within the proper sphere of the Legislature....

...GRAND JURY NOTES This record series consists of stenographic records, notes, and transcriptions made by the court reporter or stenographer during the grand jury session. These records are normally kept in a sealed container and are not subject to public inspection pursuant to Section 905.17(1), Florida Statutes....

...ner prescribed by law and that unauthorized persons were present in the Grand Jury room during the time that evidence was presented which unauthorized persons actually conducted the interrogation of Petitioner before the Grand Jury in violation of F.S. 905.17(1) and F.S....

...The record further reveals that State Attorney Austin and his two visitors were all three in the Grand Jury room at the same time with the unauthorized visitors in actual or practical charge of the proceedings and the conducting of the investigation, in total violation of Section 905.17(1), Florida Statutes, which provides: "No person shall be present at the sessions of the grand jury except the witness under examination, the state attorney or his designated assistant, the court reporter or stenographer, and the interpreter....

...State Attorneys of the Fourth Judicial Circuit properly assigned to the Second Judicial Circuit, they were nevertheless without legal right to appear simultaneously with the Assigned State Attorney during the Grand Jury proceedings. Florida Statute 905.17(1) is specific as to whom may be present at sessions of the Grand Jury and the reference there to the State Attorney and his designated assistant is in the disjunctive....

...ould not be vitiated for the reason that both the prosecuting attorney and one assistant prosecuting attorney were present before the Grand Jury at the same time. The court, in its opinion, found the above procedure not violative of Florida Statutes 905.17 and 905.19 as enacted by the Legislature in 1939, and as they existed at the time of the decision. Both statutes were subsequently amended by the 1970 Florida Legislature, in pertinent part as follows: Florida Statute 905.17 (1939-1970) "No person shall be present at the sessions of the grand jury except * * * the prosecuting attorney * * *." Florida Statute 905.17 (1970-1974) "No person shall be present at the sessions of the grand jury except * * * the state attorney or his designated assistant * * *." Florida Statute 905.19 (1939-1970) "The prosecuting attorney or assistant prosecuting attorney shall attend the grand jury * * *." Florida Statute 905.19 (1970-1974) "The state attorney or an assistant state attorney shall attend * * *." In view of the foregoing legislative amendments, a finding that Sections 905.17 and 905.19 authorize the presence before the Grand Jury of the State Attorney and two Assistant State Attorneys at the same time requires the following judicial amendments to the statutes in question. 1. 905.17 — Strike "or" and insert in lieu thereof "and". 2. 905.17 — Strike "assistant" and in lieu thereof insert "assistants"....

...Lewis, 426 So.2d 1 (Fla. 1982), before he conducts an in camera hearing concerning a matter related to a grand jury proceeding. Petitioner argues, as it argued below, that the term "grand jury proceeding" is synonymous with "grand jury session" as defined in Section 905.17 Florida Statutes....

...The second purpose of this opinion is to discuss briefly appellant's contention that it was error for appellant to be questioned by the assistant state attorney pursuant to section 27.04, Florida Statutes (1979), in the presence of a law enforcement officer. Appellant urges that because section 905.17(1), Florida Statutes (1979), restricts those present during grand jury sessions, section 27.04 should be similarly restrictive....

...es. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court. [6] See Form 1.982, Florida Rules of Civil Procedure, which is illustrative of the bare boned essential facts which must be alleged. [7] Section 905.17(1) provides: No person shall be present at the sessions of the grand jury except the witness under examination, the state attorney and his assistant state attorneys, designated assistants as provided for in s....

...abatement. In so doing and as a bases therefor the court adopted findings of fact. One of the findings was that unauthorized persons were present during regular term of the grand jury. The court further found that this violation of the statutes (See Section 905.17 Fla.Stat., F.S.A.) rendered the subsequent indictment subject to being quashed upon a proper motion, citing State ex rel....

...The trial court, however, departed from the essential requirements of law in determining that section 905.27 was subject to the constitutional requirements set forth in Article I, Section 24. Section 905.27 does not provide a public records exemption for grand jury testimony; such an exemption is contained within section 905.17. Section 905.17(1) provides: The notes, records, and transcriptions [of the grand jury] are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall be released by the clerk only on request by a grand jury for use by the grand jury or on order of the court pursuant to s. 905.27. More importantly, in re-enacting section 905.17, the legislature did set forth a statement of public necessity as prescribed by Article I, Section 24(e) of the State Constitution: The Legislature finds that the exemption from the public records law of stenographic records, notes and...

...94-74, § 2, Laws of Fla. Thus, section 905.27 clearly complies with the public necessity requirement contained in Article I, Section 24(e). In conclusion, the purpose of section 905.27 is to provide a limited exception to the public records exemption contained in section 905.17. Section 905.17 provides the general exemption from section 119.07 and thus is subject to the requirements of Article I, Section 24(c). While section 905.17 provides the general exemption for grand jury materials, section 905.27 merely encompasses an exception to the exemption contained in section 905.17.Nothing in Article I, Section 24 requires exceptions to a public record exemption to contain a public necessity statement....

...119.14. That same day, the legislature re-enacted several statutes including section 905.27. The substance of section 905.27 remained the same after the 1994 re-enactment. . We decline to consider whether the public necessity statement contained in section 905.17 is overly broad because that issue was never before the trial court.

1967. In our opinion, this was in error. F.S.A. § 905.17 provides: “ * * * The stenographic records, notes

...On October 19, the assigned circuit judge entered a further order sua sponte reciting that the testimony taken at the hearing on October 17 indicated that one or more persons might be in contempt of the Circuit Court of the Eighteenth Judicial Circuit under Section 905.17, F.S.1965, F.S.A., but that since the conduct involved occurred over a period of time longer than the period during which the grand jury heard testimony and made its interim report which was the subject of the instant proceedings, the...

...1967, was final in nature insofar as all matters then pending. The State contends, however, that since the assigned judge felt the testimony he heard on October 17 might be the basis of a charge of criminal contempt against one or more persons under Section 905.17, F.S.1965, F.S.A., the case had not been “heard to its conclusion” and consequently, the assigned judge should have retained jurisdiction....

...541 , 226 A.2d 765 (1967). Respondent complains that if the Miranda warnings are applicable to petitioners before the Grand Jury proceedings, then petitioners would be entitled to the presence of counsel before these hearings which would be contrary to Section 905.17, Florida Statutes, F.S.A., since that statute prohibits counsel from being present in the Grand Jury room....

...90.6063 (2) shall not disclose the nature or substance of the deliberations or vote of the grand jury." In addition, records prepared for use by the grand jury during the performance of its duties are not subject to public inspection and copying under the provisions of the Public Records Law. 4 Section 905.17 (1), Florida Statutes, specifically states in part: "The notes, records, and transcriptions are confidential and exempt from the provisions of s....

...I of the State Constitution and shall be released by the clerk only on request by a grand jury for use by the grand jury or on order of the court pursuant to s. 905.27 ." Section 905.27 (1), Florida Statutes, provides a limited exception to the public records exemption contained in section 905.17 , Florida Statutes....