Sailor v. State

• Decision Date: 23 April 1999
• Docket Number: No. 98-1476.,98-1476.
• Citation: 733 So.2d 1057
• Parties: Dereck S. SAILOR, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

733 So.2d 1057

Dereck S. SAILOR, Petitioner, v. STATE of Florida, Respondent.

No. 98-1476.

District Court of Appeal of Florida, First District.

April 23, 1999.

Robert Woolfork, Tallahassee, for Petitioner.

Robert A. Butterworth, Attorney General; Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.

EN BANC

BENTON, J.

As a defendant in an ongoing criminal proceeding, Dereck S. Sailor petitions for a writ of certiorari seeking to prevent a change of venue from Gadsden County to Madison County. Given the constitutional right of the "accused ... to have a speedy and public trial by impartial jury in the county where the crime was committed," Art. I, § 16(a), Fla. Const. (1968), the trial court departed from the essential requirements of law in ordering the case transferred to another county over defense objection. We therefore grant the petition for writ of certiorari, and quash the order changing venue.

I.

We have consistently granted petitions for writs of certiorari as a means of assuring defendants in criminal cases the right to stand trial in the county in which the crime of which the defendant is accused took place, including earlier in this very prosecution. See Sailor v. State, No. 97-3798 (Fla. 1st DCA 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 of the right 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 1965).)

II.

The state indicted Mr. Sailor and three co-defendants for first degree murder and attempted first degree carjacking, alleging that both crimes were committed in Gadsden County. A severance led to separate trials for each defendant. After Mr. Sailor's first two trials ended with hung juries, the state reduced the murder charge to second degree. (Following the second mistrial, the state moved for a change of venue, but the trial court denied the motion.) Mr. Sailor's third trial ended, just as the first two had, without the jury's reaching a verdict.

After the third mistrial, the state again moved for a change of venue, alleging substantial media coverage of each mistrial (as well as of the co-defendants' trials), and that a large portion of the population of Gadsden County had prejudged Mr. Sailor's guilt or innocence. Over defense objection, the trial court granted the state's second motion for change of venue.

Mr. Sailor then petitioned this court for a writ of certiorari in an effort to prevent the transfer, and we concluded that

the trial court's action in granting the state's motion for change of venue without conducting an exhaustive effort to empanel a jury in Gadsden County was premature and constitutes a departure from the essential requirements of law. See Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA),

review denied, 392 So.2d 1379 (Fla.1980). Accordingly, the petition for writ of certiorari is granted, the trial court's amended order transferring venue is quashed, and the matter is remanded to the Circuit Court in Gadsden County for further proceedings.

Sailor v. State, No. 97-3798 (Fla. 1st DCA Oct. 17, 1997). On remand, the trial court made its first effort after the third mistrial to empanel a jury, an effort that all but succeeded.

Starting with a jury pool of fifty-eight, the trial court ended up with five of the six jurors needed. Before voir dire, the trial court excused fourteen potential jurors. The trial court excused an additional twenty-six jurors for cause after voir dire, leaving eighteen potential jurors on the venire.¹

The trial court allowed each side ten peremptory challenges. Once the defense exercised four peremptory challenges and the state exercised nine peremptory challenges, only five jurors remained. Mr. Sailor declined to accept a five-person jury, and the trial judge declared a mistrial, without ordering enforcement of any of the outstanding jury summonses² or making any other attempt to seat another juror.

Of four attempts to seat juries in this case, three proved successful. Before the first degree murder charge was dropped, fourteen jurors were reportedly selected for the first trial and thirteen jurors were reportedly selected for the second trial. Like the pending retrial, the third trial only required a six-person jury, and the trial court could have seated five jurors this time.

This record does not establish that the court made an "exhaustive attempt" to seat a jury before declaring a mistrial or that additional effort would not have proven successful. See Rhoden, 179 So.2d at 607

(reversing grant of a change of venue over defense objection where the trial court exhausted the venire in selecting five jurors).

III.

Read literally, the Florida Constitution unequivocally guarantees a criminal defendant the right to stand trial in the county in which the crime of which he is accused allegedly transpired. The concurring opinion suggests section 910.03, Florida Statutes (1997), can be read as reflecting a legislative view that the defendant's constitutional right to stand trial in the county in which the offense is alleged to have taken place is absolute.³ Any change of venue without the consent of the defendant has been said to be of "doubtful validity." Stone v. State, 378 So.2d 765, 768 (Fla. 1979) (dictum). Nothing in the Florida Constitution explicitly authorizes a change of venue to another county over defense objection. See Rhoden, 179 So.2d at 607

.

Instead, the constitution states without qualification that the "accused ... shall have the right ... to have a speedy and public trial by impartial jury in the county where the crime was committed." Art. I, § 16(a), Fla. Const. This right has existed continuously since the 1885 constitution⁴ and guarantees that defendants "will be tried at home ... for crimes allegedly committed at home; that they will be tried abroad only for crimes committed abroad." Beckwith, 386 So.2d at 838; see Ward, 328 So.2d at 261-63

.

Both in promulgating Florida Rule of Criminal Procedure 3.240(a) and in decisions on the question, however, our supreme court has recognized the possibility of a change of venue on the state's motion if a fair and impartial jury cannot be empaneled in the county where the crime was committed. But precedent does not support the view that the constitutional right to be tried in the county where the crime is alleged to have occurred hinges on the trial judge's assessment of the effects of media coverage or the mood of the community or the like.

While our supreme court has said that defense objection does not preclude a change of venue at the state's request, it has never actually upheld any such change of venue. Only once, indeed, has any Florida court approved a change of venue not explicitly requested or affirmatively agreed to by the defendant. See Hewitt v. State, 43 Fla. 194, 30 So. 795 (1901). The defendants in Hewitt did not object to a change of venue at the time the court ordered the change. The only issue on appeal there was whether a statute could constitutionally authorize a change of venue on the state's motion, even in the absence of timely objection. See id. at 795. The court held the constitution did not bar a change of venue, in the absence of contemporaneous objection, where "the trial court put the question of obtaining an impartial jury ... to actual test."⁵ Id. at 796.

Since Hewitt, the Florida Supreme Court has decided cases in which trial courts granted state requests for change of venue over defense objection. See Higginbotham, 101 So. at 235; Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916); O'Berry v. State, 47 Fla. 75, 36 So. 440, 443 (1904). In each case, the court reversed the defendant's conviction, holding the state had failed to establish that a fair and impartial trial could not be held in the county where the crime was committed. See Higginbotham, 101 So. at 234-35; Ashley, 72 So. at 649; O'Berry, 36 So. at 443. The Ashley court stated the rule, as follows:

Where an application in a criminal prosecution for a change of venue from the county where the crime was committed is made by the prosecuting attorney, and the accused objects thereto, the matter should be tested in some way so as to make it to clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.

Ashley, 72 So. at 648; see also Higginbotham, 101 So. at 234 (holding that, unless the accused consents, the state's request for a change of venue may be granted "only when it is impossible to secure an impartial jury").

These cases make clear that the constitutional standard—at the very least "to make it to clearly appear that it is practically impossible to obtain an impartial jury"—is extremely stringent. In O'Berry, for example, a trial court had ordered a change of venue from Osceola County to Brevard County based on, among other things, the fact that the case was "discussed generally throughout the county" and that there were only "about 600 persons qualified to serve as jurors in Osceola county." 36 So. at 443. O'Berry's conviction "for the larceny of certain cattle" was nevertheless reversed. Id. at 440. The O'Berry court said:

It was not made to appear to the trial court, and we are in no way apprised, how many of the 600 jurors in said county were disqualified from acting as jurors in the case at bar. The fact that it might have been difficult or would have consumed considerable time to have procured a qualified jury to have tried the defendant is not sufficient to warrant a change of venue, against the consent of defendant.... [S]uch an important right must not be lightly treated.

36 So. at 443-44. To the same effect, the Ashley c...