DRINKARD

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2024-1844 _____________________________

JUSTIN DRINKARD,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Bay County. Shonna Young Gay, Judge.

May⁶, 2026

OSTERHAUS, 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,

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:

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

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.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

BILBREY, 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.”

* 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).

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.