Third District Court of Appeal
State of Florida
Opinion filed June 17, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-3142
Lower Tribunal No. 10-497-K
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Pablo Jimenez,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction– Habeas Corpus.
Pablo Jimenez, in proper person.
Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for respondent.
Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
EMAS, J.
Pablo Jimenez filed a petition for writ of habeas corpus, alleging that his
appellate counsel provided constitutionally ineffective assistance in Jimenez’s
direct appeal. Although Jimenez’s petition raises four claims, we conclude only
one warrants discussion. Jimenez asserts that the trial court failed to provide
Jimenez with a twelve-person jury for his trial on the charge of first-degree
murder, and that appellate counsel’s failure to raise this issue on appeal constituted
deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668
(1984). Thus, Jimenez contends, his judgment and sentence must be vacated and
he must be granted a new trial before a twelve-person jury. We deny the petition.
Jimenez was charged with first-degree murder and armed robbery. During
the pendency of the case, the State waived the death penalty. Prior to jury
selection, the trial court discussed with the State and defense that, since the State
had announced its intention not to seek the death penalty, a six-person jury would
be empaneled. Jimenez was present during this discussion. Neither the State nor
the defense objected to a six-person jury, and the jury was thereafter selected and
empaneled.
Jimenez was found guilty of first-degree murder and petit theft, and was
sentenced to life in prison on the murder conviction. On direct appeal from the
judgment and sentence, Jimenez’s counsel did not raise any claim with regard to
the empanelling of a six-person jury.
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In this petition, Jimenez asserts that appellate counsel provided
constitutionally ineffective assistance in failing to raise this claim. The criteria for
establishing a claim of ineffective assistance of appellate counsel parallels the
Strickland standard for establishing ineffective assistance of trial counsel. When
analyzing a claim of ineffective assistance of appellate counsel, this court must
therefore consider
first, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and,
second, whether the deficiency in performance compromised the
appellate process to such a degree as to undermine confidence in the
correctness of the result.
Suarez v. Dugger, 527 So. 2d 190, 192-93 (Fla. 1988).
Importantly, we note that neither Jimenez nor his trial counsel objected to
the trial court’s suggestion that a six-person jury would be empaneled for the trial.
It is true that the trial court erred in its determination that the State’s waiver of the
death penalty obviated the requirement of a twelve-person jury. See State v.
Griffith, 561 So. 2d 528 (Fla. 1990); Alfonso v. State, 528 So. 2d 383 (Fla. 3d
DCA 1988). Nevertheless, trial counsel’s failure to object to the six-person jury
operates as a procedural bar that generally precludes appellate review of such an
unpreserved error. Appellate counsel will not be deemed ineffective for failing to
challenge an unpreserved error on direct appeal, unless such a claim rises to the
level of fundamental error. Hendrix v. State, 908 So. 2d 412, 426 (Fla. 2005);
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Rutherford v. Moore, 774 So. 2d 637, 646 (Fla. 2000). Thus, given the failure to
object or otherwise preserve this error in the trial court, appellate counsel could not
have been ineffective in failing to raise such a claim on appeal, unless it can be
said that the failure to provide a twelve-person jury constitutes fundamental error,
which has been described as an error “so prejudicial as to vitiate the entire trial.”
Chandler v. State, 702 So. 2d 186, 191 n.5 (Fla. 1997).
The right to a jury trial in a criminal prosecution is of constitutional
dimension. See U. S. Const. Amend. VI (providing in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been
committed. . . .”); Art. I, § 16, Fla. Const. (providing in pertinent part: “In all
criminal prosecutions the accused shall. . . have the right to have. . . a speedy and
public trial by impartial jury in the county where the crime was committed”).
However, the right to a jury of twelve persons is not of constitutional dimension.
Rather, it is a right provided by state statute and in the corresponding Florida Rule
of Criminal Procedure. See Art. I, § 22, Fla. Const. (expressly providing: “The
right of trial by jury shall be secure to all and remain inviolate. The qualifications
and the number of jurors, not fewer than six, shall be fixed by law”) (emphasis
added); § 913.10, Fla. Stat. (2010) (“Twelve persons shall constitute a jury to try
all capital cases, and six persons shall constitute a jury to try all other criminal
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cases.”); Fla. R. Crim. P. 3.270 (providing same).1 Jimenez was not denied his
constitutional right to a trial by jury. Rather, he was provided with a trial by jury,
but consisting of six rather than twelve persons. While this failed to comply with
the statutory requirement, it was not fundamental error such that it could have been
raised for the first time on appeal. Smith v. State, 857 So. 2d 268 (Fla. 5th DCA
2003); Howell v. State, 687 So. 2d 1339 (Fla. 1st DCA 1997).
Because this non-fundamental error was not properly preserved in the trial
court, precluding review on direct appeal, Jimenez’s appellate counsel did not
provide ineffective assistance in failing to raise the issue.
Petition denied.
1 See also Williams v. Florida, 399 U.S. 78 (1970) (rejecting claim that twelve-
person jury is an indispensable component of the Sixth Amendment right to jury
trial); Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008).
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