Drinkard v. State of Florida

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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No. 1D2024-1844
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J USTIN DRINKARD,
Appellant,
v.
STATE OF FLORIDA ,
Appellee.
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On appeal from the Circuit Court for Bay County.
Shonna Young Gay, Judge.
May 6, 2026
O STERHAUS, C.J.
Justin 	Drinkard 	appeals 	his 	murder 	and 	trespassing
convictions by challenging the trial court’s denial of his request for
a twelve-person jury and his post-verdict motion to interview a
juror about her nondisclosure of a misdemeanor reckless driving
conviction. We affirm.
Constitutional 	due 	process 	guarantees 	give 	criminal
defendants the right to an impartial jury trial. Amends. IV & XIV,
U.S. Const.; Martin v. State, 322 So. 3d 25, 32 (Fla. 2021). A
defendant’s procedural rights in Florida courts include the ability
to make informed challenges against potential jurors, either for
cause or peremptorily, Martin, 322 So. 3d at 37, such that “our
appellate courts have reversed for jury interviews or new trials,

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where jurors allegedly failed to disclose a prior litigation history or
where 	other 	information 	relevant 	to 	jury 	service 	was 	not
disclosed.” De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995).
The issue here is whether the trial court violated Drinkard’s rights
by refusing to allow a post-verdict juror interview related to a
juror’s failure to disclose certain facts during voir dire.
A jury found Drinkard guilty of second-degree murder and
armed trespass of an occupied dwelling after a three-day trial in
April 2024. A couple days after the verdict, Drinkard hired a jury
investigator, who discovered that one of the jurors—Juror 105—
had 	failed 	to 	disclose 	a 	prior 	misdemeanor 	conviction 	on 	an
alcohol-related reckless driving offense. Based on this finding,
Drinkard filed a motion to interview Juror 105, which the trial
court denied.
A 	trial 	court’s 	denial 	of 	a 	motion 	to 	interview 	jurors 	is
reviewed for abuse of discretion. Bass v. State, 304 So. 3d 786, 790
(Fla. 1st DCA 2018). Florida’s rules of criminal procedure give
courts the discretion to grant post-trial juror interviews where a
juror’s conduct calls the verdict into question:
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. . . . 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.
Fla. R. Crim. P. 3.575. “[A]n evidentiary hearing need not be held
on every allegation of juror misconduct, and the defendant must
‘at least’ allege facts establishing a prima facie argument for
prejudice.” Hampton v. State, 103 So. 3d 98, 112 (Fla. 2012) (citing
State v. Hamilton, 574 So. 2d 124, 130 (Fla. 1991).
In 	assessing 	Rule 	3.575 	motions 	in 	cases 	of 	juror
nondisclosure of information during voir dire, Florida courts have
employed a three-part test from De La Rosa in both criminal and
civil cases. Under this test:

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First, the complaining party must establish that the
information is relevant and material to jury service in the
case. Second, that the juror concealed the information
during questioning. Lastly, that the failure to disclose the
information 	was 	not 	attributable 	to 	the 	complaining
party’s lack of diligence.
De La Rosa, 659 So. 2d at 241.
Here, the parties’ dispute focuses on the first prong of the De
La Rosa test and whether the information undisclosed by Juror
105 was relevant and material enough to her jury service to
require a juror interview. “A juror’s nondisclosure of information
is considered material where ‘the omission of the information
prevented counsel from making an informed judgment—which
would in all likelihood have resulted in a peremptorily challenge.”
Hampton, 103 So. 3d at 112 (quoting De La Rosa, 659 So. 2d at
242); see also Murray v. State, 3 So. 3d 1108, 1121–22 (Fla. 2009).
We agree with the trial court that the juror information
involved here wasn’t material because it wouldn’t have caused
Drinkard to peremptorily challenge Juror 105 had the information
been revealed. Drinkard’s case involved second degree murder,
attempted sexual battery, and trespassing charges. By contrast,
Juror 105’s undisclosed conviction arose from a comparatively
minor 	reckless 	driving 	incident 	in 	which 	“‘nothing 	about 	the
character and extensiveness of [the juror’s] own experience’ in
being convicted of a nonviolent offense ‘suggests [the juror] would
be biased’” against Drinkard in his life-felony case. Foster v. State,
132 So. 3d 40, 63 (Fla. 2013) (quoting Johnston v. State, 63 So. 3d
730, 739 (Fla. 2011). Indeed, if anything, it’s more likely that Juror
105’s posture as a misdemeanor offender in an alcohol-related
incident 	would 	have 	made 	her 	more 	sympathetic 	towards
Drinkard 	and 	the 	intoxication 	evidence 	in 	his 	case, 	thus, 	a
favorable juror for the defense. See Johnston, 63 So. 3d at 739
(explaining that a prospective juror’s status as a prior defendant
makes bias against defendant “especially unlikely”); Garnett v.
McClellan, 767 So. 2d 1229, 1231 (Fla. 5th DCA 2000) (finding the
nondisclosing juror to be “in the position of being a potential
‘defendant,’ and [therefore] it seems likely he would have been
more sympathetic to the defense than to the plaintiff”). Under

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these circumstances, we see no prima facie showing by Drinkard
of a material nondisclosure of information, or abuse of discretion
by the trial court.
Finally, we reject Drinkard’s contention that he was entitled
to 	a 	twelve-person 	jury. 	The 	United 	States 	Supreme 	Court
evaluated Florida’s jury size standards in Williams v. Florida, 399
U.S. 78 (1970), and held that the Sixth Amendment guarantee to
trial by jury did not require a twelve-person jury. See Salmon v.
State, 387 So. 3d 393 (Fla. 1st DCA 2024) (applying Williams to
this issue).
Accordingly, we AFFIRM the lower court’s denial of Drinkard’s
motion and request.
ROBERTS, J., concurs; BILBREY , J., concurs in part and in result.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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B ILBREY , J., concurring in part and in result.
After Drinkard was convicted, his attorneys discovered that
Juror 105 had not disclosed a recent arrest and criminal conviction
despite all prospective jurors being asked during voir dire about
past experiences with the legal system. The questioning included
asking prospective jurors whether they had ever been accused of a
crime. In the motion to interview Juror 105, Drinkard alleged that
Juror 105 had been arrested for DUI after drinking alcohol and
that the charge was pleaded down to reckless driving. His motion
cited Wilcox v. Dulcom, 690 So. 2d 1365, 1366 (Fla. 3d DCA 1997),
for his contention that a prospective juror’s failure to disclose prior
litigation history was per se “relevant and material to jury service,
even if that history involves a different type of case.”

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But the holding in Wilcox has been superseded by the Florida
Supreme Court in Roberts ex rel. Estate of Roberts v. Tejada, 814
So. 2d 334, 345 (Fla. 2002). There, the Court discussed “the three-
prong test which applies in cases of juror nondisclosure.” 	Id. at
339 (citing De La Rosa v. Zequeria, 659 So. 2d 239, 241 (Fla. 1995)).
“Pursuant to De La Rosa’s first prong, the complaining party must
establish not only that the nondisclosed matter was ‘relevant’ —
as all prior litigation history is — but also that it is ‘material to
jury service in the case.’” Roberts, 814 So. 2d at 339. The Court in
Roberts noted that the litigation history may be material but then
stated, “Nor does De La Rosa dictate that all prior litigation history
(while relevant) is per se material.” 	Roberts, 814 So. 2d at 341
(citation omitted); see also Hampton v. State, 103 So. 3d 98, 112–
13 (Fla. 2012); Johnston v. State, 63 So. 3d 730, 738 (Fla. 2011).*
To be entitled to interview Juror 105, Drinkard was required
in his motion to “allege facts establishing a prima facie argument
for prejudice.” 	Hampton, 103 So. 3d at 112. On appeal, Drinkard
explains he was intoxicated during the incident that led to his
arrest and “that Juror 105 could have taken a negative view of
Appellant 	Drinkard’s 	intoxication.” 	While 	this 	is 	certainly
possible, and in my view may have required a juror interview had
this allegation of materiality been made in the motion, the motion
needed to have had sufficient allegations of materiality for the
issue to be preserved. 	See id. 	Since Drinkard’s motion lacks
allegation explaining how Juror 105’s nondisclosure was material,
I would affirm based only on this ground and would not reach the
question of whether the nondisclosure was in fact material.
As for Drinkard’s argument that a twelve-person jury was
required 	under 	the 	Sixth 	Amendment 	to 	the 	United 	States
Constitution, which has been incorporated against the states in
the Fourteenth Amendment’s Due Process Clause, I concur with
* Following Wilcox, the Third District receded from its holding,
stating, “we clarify that Wilcox does not mandate an automatic
new trial whenever there has been a nondisclosure of litigation
information.” Birch ex rel. Birch v. Albert, 761 So. 2d 355, 359 (Fla.
3d DCA 2000).

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the majority’s opinion rejecting this claim. We cannot overrule the
binding precedent given by the United States Supreme Court in
Williams v. Florida, 399 U.S. 78, 86 (1970). Drinkard notes in his
initial brief that the holding in Williams has been criticized, and
strongly so, by Justice Gorsuch. 	See Khorrami v. Arizona, 143 S.
Ct. 22, 23 (2022) (Gorsuch, J., dissenting from denial of certiorari)
(“Williams was wrong the day it was decided, it remains wrong
today, and it impairs both the integrity of the American criminal
justice system and the liberties of those who come before our
Nation’s courts.”); see also Cunningham v. Florida, 144 S. Ct. 1287,
1287 (2024) (Gorsuch, J., dissenting from denial of certiorari).
In our court Williams has had both a defender, see Lainhart
v. State, 351 So. 3d 1282, 1284 (Fla. 1st DCA 2022) (B.L. Thomas,
J., concurring), and a critic. See Lessard v. State, 232 So. 3d 13,14
(Fla. 1st DCA 2017) (Makar, J., concurring). But unless the United
States Supreme Court chooses to reconsider Williams, in Florida
criminal trials a twelve-person jury is only required for capital
cases. 	See Phillips v. State, 316 So. 3d 779, 786 (Fla. 1st DCA
2021).
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Michael Robert Ufferman, of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.
James Uthmeier, Attorney General, and Miranda Lee Butson,
Assistant Attorney General, Tallahassee, for Appellee.