Davis v. State, No. P--465

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; SPECTOR, C.J., and JOHNSON; WIGGINTON; WIGGINTON
Citation256 So.2d 565
PartiesW. E. 'Bill' DAVIS, Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. P--465
Decision Date16 December 1971

Page 565

256 So.2d 565
W. E. 'Bill' DAVIS, Petitioner,
v.
STATE of Florida, Respondent.
No. P--465.
District Court of Appeal of Florida, First District.
Dec. 16, 1971.
Rehearing Denied Jan. 5, 1972.

Joe J. Harrell, of Harrell, Wiltshire, Bozeman, Clark & Stone, Pensacola, for petitioner.

Robert L. Shevin, Atty. Gen., and William W. Herring, Asst. Atty. Gen., for respondent.

PER CURIAM.

The petitioner herein seeks to quash the trial court's order transferring the cause to Duval County upon the motion of the State for a change of venue.

We have carefully reviewed the matter and conclude that the petition for a writ of certiorari should be granted. The order transferring the cause from Escambia to Duval County is hereby quashed under the authority of Rhoden v. State, 179 So.2d 606 (Fla.App.1st, 1965).

It is so ordered.

SPECTOR, C.J., and JOHNSON, J., concur.

WIGGINTON, J., dissents.

WIGGINTON, Judge (dissenting).

I am of the view that in the light of two mistrials of this case and the overwhelming evidence before the court tending to establish the impossibility of securing a fair and impartial trial of appellant in Escambia County where the crime is alleged to have been committed, the trial court acted well within the scope of its discretion and jurisdiction in ordering that the venue of the case be changed to Duval County. The two mistrials together with the affidavits

Page 566

and supporting evidence before the court were in my opinion an adequate test of the issue, and I find nothing in the record to indicate that the trial court abused its discretion or deviated from the requirements of Rule 1.240, Rules of Criminal Procedure, 33 F.S.A., 1 in granting the change of venue.

Because of the difference in the factual situation existing in this case and that in Rhoden v. State, 2 it is my view that the Rhoden case is not authority for the majority opinion rendered herein. Petitioner's sole contention is that the trial court should have impaneled a venire and made an actual test of whether an impartial jury could have been selected before holding that a fair trial could not be had in Escambia County. The necessity for impaneling a jury as a test of the issue is not an essential step in the proceedings to determine whether the motion for change of venue should be granted. I would therefore affirm the order appealed herein.

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1 Rule 1.240, Cr.P.R., Change of Venue.

'(a) The state or the defendant may move for a change of...

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2 practice notes
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...Oct. 17, 1997); Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA 1980); Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976); Davis v. State, 256 So.2d 565 (Fla. 1st DCA 1971). (The failure to raise the question by petition for writ of certiorari before trial is not, however, fatal to vindication......
  • Ward v. State, No. AA--307
    • United States
    • Court of Appeal of Florida (US)
    • March 11, 1976
    ...jury after exhausting a panel of 34, all summoned to duty by the defendant's brother, the sheriff; and in reversing Davis v. State, 256 So.2d 565 (Fla.App.1st, 1972), in which Judge Wigginton dissented on the ground that an actual attempt to obtain an impartial jury is not essential under R......
2 cases
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...Oct. 17, 1997); Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA 1980); Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976); Davis v. State, 256 So.2d 565 (Fla. 1st DCA 1971). (The failure to raise the question by petition for writ of certiorari before trial is not, however, fatal to vindication......
  • Ward v. State, No. AA--307
    • United States
    • Court of Appeal of Florida (US)
    • March 11, 1976
    ...jury after exhausting a panel of 34, all summoned to duty by the defendant's brother, the sheriff; and in reversing Davis v. State, 256 So.2d 565 (Fla.App.1st, 1972), in which Judge Wigginton dissented on the ground that an actual attempt to obtain an impartial jury is not essential under R......

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