Rhoden v. State, No. G-315

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOHNSON; RAWLS, C. J., and STURGIS
Citation179 So.2d 606
PartiesRussell RHODEN, Appellant, v. STATE of Florida, Appellee.
Decision Date02 November 1965
Docket NumberNo. G-315

Page 606

179 So.2d 606
Russell RHODEN, Appellant,
v.
STATE of Florida, Appellee.
No. G-315.
District Court of Appeal of Florida, First District.
Nov. 2, 1965.

Page 607

C. A. Avriett, Jasper, for appellant.

Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty. Gen., for appellee.

JOHNSON, Judge.

On June 12, 1964, the appellant here, but who will be referred to hereafter in this opinion as the defendant, was indicted by the grand jury of Hamilton County, Florida, for assault with intent to commit murder of Charlie Rhoden.

Defendant entered plea of not guilty by reason of insanity at the time committing the offense, and the case was set for trial for February 22, 1965. The court drew a panel of fifty jurors from the jury box which contained 261 names. The Sheriff, who was the brother of the defendant and the person upon whom the assault is alleged to have been made, served notice on 40 of the prospective jurors, making a return that 10 could not be found. The court excused 5 more jurors, of its own volition for good causes, leaving a panel of 35 jurors. The case was called for trial on February 22, 1965, and the panel of jurors was exhausted with 5 jurors tentatively accepted. The State then made oral motion for change of venue, which was granted. On February 23, 1965, the State attorney then filed his written motion for change of venue, which merely set up the fact that the parties were prominent in the county and that the case had been widely discussed and that it would be impossible to eliminate from the minds of the jury selected to try the case.

No reason is stated in the written motion why the required notice of ten days was not given. The statement contained in the motion 'That the Court has made an effort to secure a jury out of 38 members, and it developed that a jury was unable to be obtained * * *' is the nearest allegation of good cause shown for failure to file the motion ten days prior to trial date. F.S. 911.03, F.S.A. The allegations of the motion, other than the above quoted portion, related facts which were known to the State attorney for many years and therefore can not be said to be 'good cause' for not filing ten days before trial.

§ 11, Declaration of Right of Florida Constitution, F.S.A. provides that the 'accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed * * *'

Florida Statutes 910.03, F.S.A. provides 'In all criminal prosecutions...

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9 practice notes
  • 1998 -NMCA- 18, State v. House, Nos. 16913
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 20, 1997
    ...change of venue motion, district court erred in granting motion despite great difficulty in selecting another jury); Rhoden v. State, 179 So.2d 606 (Fla.Dist.Ct.App.1965) (mere fact that it would be difficult and time-consuming to select jury is insufficient reason to change venue over defe......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...to be tried in the county in which the crime was committed. See Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924); Rhoden v. State, 179 So.2d 606 (Fla. 1st DCA II. The state indicted Mr. Sailor and three co-defendants for first degree murder and attempted first degree carjacking, allegi......
  • Collins v. State, No. 5904
    • United States
    • Court of Appeal of Florida (US)
    • March 15, 1967
    ...where the offense was committed unless otherwise provided by law.' As stated by the 1st District Court in Rhoden v. State, Fla.App.1965, 179 So.2d 606: 'Section 11, Declaration of Rights, does not afford any change of venue, nor does the constitution elsewhere provide for such change and th......
  • Kearse v. State, No. SC90310.
    • United States
    • United States State Supreme Court of Florida
    • June 29, 2000
    ...an important one which "must not be lightly treated." O'Berry v. State, 47 Fla. 75, 86, 36 So. 440, 444 (1904); see also Rhoden v. State, 179 So.2d 606, 607 (Fla. 1st DCA 1965) (noting that right to jury trial in county where crime was committed is a right that should be "jealously guarded"......
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9 cases
  • 1998 -NMCA- 18, State v. House, Nos. 16913
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 20, 1997
    ...change of venue motion, district court erred in granting motion despite great difficulty in selecting another jury); Rhoden v. State, 179 So.2d 606 (Fla.Dist.Ct.App.1965) (mere fact that it would be difficult and time-consuming to select jury is insufficient reason to change venue over defe......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...to be tried in the county in which the crime was committed. See Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924); Rhoden v. State, 179 So.2d 606 (Fla. 1st DCA II. The state indicted Mr. Sailor and three co-defendants for first degree murder and attempted first degree carjacking, allegi......
  • Collins v. State, No. 5904
    • United States
    • Court of Appeal of Florida (US)
    • March 15, 1967
    ...where the offense was committed unless otherwise provided by law.' As stated by the 1st District Court in Rhoden v. State, Fla.App.1965, 179 So.2d 606: 'Section 11, Declaration of Rights, does not afford any change of venue, nor does the constitution elsewhere provide for such change and th......
  • Kearse v. State, No. SC90310.
    • United States
    • United States State Supreme Court of Florida
    • June 29, 2000
    ...an important one which "must not be lightly treated." O'Berry v. State, 47 Fla. 75, 86, 36 So. 440, 444 (1904); see also Rhoden v. State, 179 So.2d 606, 607 (Fla. 1st DCA 1965) (noting that right to jury trial in county where crime was committed is a right that should be "jealously guarded"......
  • Request a trial to view additional results

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