Florida/Georgia Personal Injury & Workers Compensation

...[f]elony of the third degree ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under s. 921.0022 or s. 921.0023, the offense of criminal attempt . . . is a felony of the third degree"); § 921.0022(3)(d), Fla. Stat. (2013) (ranking the third-degree felony of tampering with jurors under section 918.12, Florida Statutes, as a level 4 offense). MORRIS, KHOUZAM and BADALAMENTI, JJ., Concur. -2- 

...gments for the lesser-included offenses of attempted tampering with jurors and for resentencing. I. FACTS The State charged Gammage with three counts of tampering with jurors in violation of section 918.12, Florida Statutes (2013)....

...felon sending someone to prison. Based on this evidence, the jury found Gammage guilty of tampering with jurors. The trial court sentenced Gammage to three consecutive five-year sentences, the maximum sentence permitted by law. See § 918.12 (providing that the offense of tampering with jurors is a third-degree felony); § 775.082(3)(d), Fla....

...3d DCA 1981) -4- ("Generally, where an attempt is proscribed only by the attempt statute, [s]ection 777.04, Florida Statutes, it is a crime of a lesser degree than the completed crime."). The statute at issue in this case, section 918.12, provides that [a]ny person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or proceeding which may be pending, or which may by law be...

...Instead, the State proceeded only on the theory of attempt, and the jury was instructed that the offense of tampering with jurors is committed when a person "unlawfully attempts to influence the judgment or decision" of a juror. But the word attempt is not included in section 918.12....

...eaning). The word influence denotes an effect and therefore does not include an attempt or endeavor. Because the plain language of the statute does not by its express terms include attempt, an attempt to commit the substantive crime prohibited in section 918.12 invokes the application of the attempt statute, section 777.04, resulting in an offense of a lesser degree. -5-  By comparison, the witness tampering statute, section 914.2...

...or the offense of tampering with jurors, but the written jury instruction in our record cites to Nobles v. State, 769 So. 2d 1063 (Fla. 1st DCA 2000), as authority for the instruction given in this case. The State relies on Nobles in arguing that section 918.12 prohibits an attempt to influence a juror. In Nobles, the First District held "that section 918.12 prohibits an attempt to influence a member of the jury venire as well as a member of the jury panel ultimately selected to try the case." 769 So....

...be convicted of threatening a juror[] because [the prospective juror] never served as a juror in his case." Id. at 1065. The court stated that "[t]he controlling issue on appeal -6- [was] whether the legislature used the term 'juror' in section 918.12 ....

...to refer only to a person who has been chosen to decide a case[] or whether it employed the term in a broader sense as a reference to a person who has received a jury summons and therefore might be selected to decide a case." Id. In analyzing the issue, the court made the following statements: Section 918.12, Florida Statutes[,] expressly prohibits an attempt to threaten or influence any person who has been summoned for jury duty and might be called upon to serve on a jury....

...de that the term "juror" necessarily refers to prospective jurors as well as active jurors. Id. (second alteration in original). In deciding the issue before it, the Nobles court stated several times that section 918.12 prohibits any attempt to threaten or influence a prospective juror. But the defendant in Nobles did not make the argument that his offense constituted only attempted tampering rather than the substantive crime prohibited in section 918.12, and the Nobles opinion does not analyze the language of the statute in the context of the law applicable to attempt....

...Joughin, 141 So. 185 (Fla. 1932), in which the supreme court held that a person could be held in contempt for attempting to influence a prospective juror). But these considerations do not warrant treating an attempt as the substantive crime under section 918.12 when (1) specific language prohibiting an attempt is absent from the -7- statute and (2) when an attempt is criminalized under section 777.04 as a first-degree misdemeanor offense....

...rum free of actual or perceived partiality; and WHEREAS, expressive conduct and the dissemination of leaflets and other materials containing written information tending to influence summoned jurors as they enter the courthouse may be in violation of section 918.12, Florida Statutes; and WHEREAS, pursuant to a defense motion to strike, a Ninth Judicial Circuit Court judge recently found a jury panel had been tampered with per section 918.12, Florida Statutes, and Nobles v....

...The public sidewalks that comprise the boundaries of this designated perimeter are excluded from this designation of the courthouse complex grounds. [[Image here]] 4. Anyone engaging in the type of expressive conduct as contemplated by this Order may be in violation of section 918.12, Florida Statutes, and/or may be found in contempt of court....

PADOVANO, J. The defendant, Johnny Lee Nobles, appeals his conviction for jury tampering. He contends that the evidence was insufficient to support a conviction under section 918.12, Florida Statutes, because the juror he allegedly threatened was merely a prospective juror who had not been selected to serve in his case. We conclude that section 918.12 prohibits an attempt to influence a member of the jury venire as well as a member of the jury panel ultimately selected to try the case....

...The defendant asked Jones to say that she did not know him and, if selected on the jury, to vote to find him not guilty. He then told Jones that it would be in her best interest to do as he had asked. *1065 Based on these facts, the state charged the defendant with jury tampering in violation of section 918.12, Florida Statutes....

...the convenience store, but the jury found the defendant guilty as charged. Following his sentencing, the defendant filed a timely notice of appeal to this court. The controlling issue on appeal is whether the legislature used the term “juror” in section 918.12, Florida Statutes to refer only to a person who has been chosen to decide a case, or whether it employed the term in a broader sense as a reference to a person who has received a jury summons and therefore might be selected to decide a case. To resolve this question we look first to the language of the statute itself. See State v. Dugan, 685 So.2d 1210 (Fla.1996); Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470 (Fla.1995). Section 918.12 does not purport to define the class of persons who qualify as jurors, but it is clear from the language of the statute as a whole that the proscription against jury tampering applies with equal force to prospective jurors. Section 918.12, Florida Statutes expressly prohibits an attempt to threaten or influence any person who has been summoned for jury duty and might be called upon to serve on a jury....

...ry is selected. Justice would be obstructed and a tainted jury would be seated, yet there would be no recourse. This would be an unreasonable construction of the statute. For these reasons, we conclude that the proscription against jury tampering in section 918.12, Florida Statutes applies to prospective jurors as well as to jurors in active service on a jury panel....

...Gammage's case was scheduled for that day as what is colloquially known as a "pick and go." -2- notified the trial court. Gammage's trial on the drug charges was continued, and the State filed three new charges against Gammage for tampering with jurors in violation of section 918.12, Florida Statutes (2013). At Gammage's trial on the tampering charges, the evidence showed that three prospective jurors were approached in the parking lot and on the sidewalks leading up to the courthouse all within a...

...question before this court is whether Gammage's three convictions for attempted tampering with jurors violate double jeopardy. To properly address this question, we must first determine, if possible, the legislature's intent under the language of section 918.12....

...If the charge did occur during the same transaction or episode, we must then determine if the convictions were predicated on distinct acts."). -5- 1. Unit of Prosecution As mentioned above, our first task is to determine whether the language of section 918.12 allows us to determine the applicable unit of prosecution intended by the legislature....

..."If there is ambiguity [in the language of the statute], . . . the rule of lenity applies to resolve the ambiguity against turning a single transaction into multiple offenses." Id. at 1183. In this case, looking first at the language of the statute, it provides: 918.12—Tampering with jurors....

...him or her as such juror, with intent to obstruct the administration of justice, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 918.12 (emphasis added.) Under the "a/any" test as set out by Grappin and explained in Bautista and Wallace, because the statute refers to influencing the judgment of "any ....

...multiple jurors. Hence, this portion of the statutory language also tends to support a conclusion that a defendant commits only one offense regardless of the number of jurors tampered with during a single criminal episode. Finally, section 918.12 was last amended in 1997, thirteen years after the supreme court set forth the "a/any" test in Grappin, see ch....

...other statutes. Nevertheless, the legislature has not taken any steps to amend the tampering statute, even with the presumed knowledge that it would be subject to judicial construction under the "a/any" test. Since the legislature has not amended section 918.12 in the twenty-five years since the Grappin decision issued, it can be safely presumed that the legislature agrees with the court's application of the "a/any" test and understands and accepts the interpretation of the tampering statute that will result from its application....