Blackwelder v. State, A-144
| Decision Date | 27 February 1958 |
| Docket Number | No. A-144,A-144 |
| Citation | 100 So.2d 834 |
| Parties | J. M. BLACKWELDER, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
J. C. Adkins, Ira J. Carter, Jr., Gainesville, for petitioners.
Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for respondent.
Defendant was charged by one information with unlawful sale of intoxicating liquors in a dry county and by a separate information with unlawful possession of intoxicating liquors with intent to sell same in a dry county, which offenses are misdemeanors. The cases were consolidated for trial in the county judge's court of Alachua County and defendant was convicted of both charges. On appeal to the circuit court the convictions were affirmed. Certiorari is sought to review that action.
Section 913.08, Florida Statutes, F.S.A., provides that the state and the defendant shall each be allowed three peremptory challenges if the offense charged is a misdemeanor. It is insisted, inter alia, that the trial court erred in denying defendant the right to peremptorily challenge six prospective jurors and in denying his request that the two cases be tried separately. The question as to whether upon consolidation of criminal cases defendant is entitled to cumulate the number of peremptory challenges that would have been allowable if the cases had been tried separately has not been directly decided by our supreme court.
In the course of selecting the jury defendant undertook to exercise a fourth peremptory challenge. His attorney, in contending for the fourth peremptory challenge, stated that the 'two cases have been consolidated for trial.' While the record does not reflect formal consolidation prior to this statement, we accept it as clearly indicating that there existed at least a tacit understanding to that effect and that the parties were proceeding on that assumption.
The court refused to allow the attempted challenge. Thereupon the state moved and the court ordered, over the objection of defendant who requested severance, that the cases be consolidated for trial. The motion was predicated on the ground that the charges grew out of the same set of circumstances, occurring at the same time and place, involving the same witnesses and defendant, and calling for the same evidence, and this was borne out by the proofs.
Defendant did not thereafter renew his effort to peremptorily challenge additional jurors, but as we have accepted as correct the statement of his attorney regarding the consolidation, and as it was made prior to the granting of the state's formal motion, we treat the previous ruling of the court as continuing to prevail.
Defendant cites Meade v. State, Fla., 85 So.2d 613, as authority for his alleged right to six peremptory challenges, that being the aggregate number that would have been available to him on separate trials of the charges made by the two informations. We do not agree. In the Meade case separate indictments charged...
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McClure v. State
...cases, as approved in the Hall case, was cited and followed by the District Court of Appeal, First District, in Blackwelder v. State, Fla.App.1958, 100 So.2d 834. In the instant case the appellant killed his wife and the two children in the same manner, by shooting them with a revolver, at ......
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Livingston v. State, 4-86-1426
...supra, in which the major holding was that it was error for the trial court to consolidate the cases. We have examined Blackwelder v. State, (Fla.App.) 1958, 100 So.2d 834, which held that where the basis for informations arose out of a single incident, the evidence was secured simultaneous......
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Costantino v. State, 66--1006
...circumstances and the evidence was of a similar and connected nature. Consequently, this case is controlled by Blackwelder v. State, Fla.App.1958, 100 So.2d 834, and not by Meade v. State, Fla.1956, 85 So.2d 613, 59 A.L.R.2d Affirmed. ...
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Johnson v. State
...supra, in which the major holding was that it was error for the trial court to consolidate the cases. We have examined Blackwelder v. State, (Fla.App.) 1958, 100 So.2d 834, which held that where the basis for informations arose out of a single incident, the evidence was secured simultaneous......