State v. Gary
| Decision Date | 19 November 1992 |
| Docket Number | No. 80425,80425 |
| Citation | 609 So.2d 1291 |
| Parties | 17 Fla. L. Week. S706 STATE of Florida, Petitioner, v. William L. GARY, Chief Judge, etc., Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen. and Richard L. Shiffrin, Sp. Asst. Atty. Gen., Miami, for petitioner.
William L. Gary, Chief Judge, Tallahassee, and Roy E. Black of Black & Furci, P.A., Miami, on behalf of William Lozano, defendant, for respondent.
The State of Florida petitions for a Writ of Mandamus or other extraordinary relief seeking reversal of a venue order issued by Respondent, Chief Judge William L. Gary of the Second Judicial Circuit in the criminal trial of State of Florida v. William Lozano. 1 For the reasons stated below, we issue the writ.
William Lozano was tried and convicted in Miami of two counts of manslaughter in connection with a highly publicized shooting. The Third District reversed and ordered a new trial, holding in relevant part that the failure to grant Lozano's motion to change venue denied him the right to a fair trial. Lozano v. State, 584 So.2d 19 (Fla. 3d DCA1991), review denied, 595 So.2d 558 (Fla.1992). 2
On remand and after hearing, Circuit Judge W. Thomas Spencer granted Lozano's motion to change venue on April 2, 1992, ordering the case removed to the Ninth Judicial Circuit in Orlando. At the request of Chief Judge Leonard Rivkind of the Eleventh Judicial Circuit, then-Chief Justice Leander Shaw issued an order temporarily assigning Judge Spencer to the Ninth Judicial Circuit to continue presiding over the case.
On April 28, Judge Spencer ordered parties to submit any motions they might wish to present with respect to holding the retrial in Orlando. Neither the State nor Lozano submitted new motions seeking a change of venue from Orlando. However, Lozano filed an Emergency Motion for Evidentiary Hearing, objecting to the filing of any subsequent change of venue order without motion by either party pursuant to Florida Rule of Criminal Procedure 3.240, and without an evidentiary hearing.
Nonetheless, Judge Spencer issued a "Supplemental Order on Venue" on May 6 on his own motion. 3 He concluded that in light of the widely publicized Los Angeles riots 4 and the racial makeup of the Orlando area, "this court is convinced that, rightly or wrongly, Orlando is now perceived as not providing the necessary framework for an impartial trial." The Supplemental Order transferred the case to the Second Judicial Circuit in Tallahassee. 5
Chief Judge Gary of the Second Judicial Circuit then issued an order on his own motion on July 27, 1992, to remove, transfer, and remand the case back to the Ninth Judicial Circuit in Orlando. Relying on sections 47.091 and 47.121 of the Florida Statutes (1991), Florida Rule of Criminal Procedure 3.240, and article I, section 16 of the Florida Constitution, Chief Judge Gary ruled that
the sua sponte order to change venue and remove this case to this Judicial Circuit without appropriate motion of the parties or consent of the defendant is invalid, being constitutionally infirm and without authority, and this Court is thus without any jurisdiction to proceed with the trial of this cause. Although, in keeping with the settled principle that jurisdiction cannot be in abeyance, it has long been held that an order to change venue eo instanti vests jurisdiction in the court to which a case is removed by such change of venue [Ammons v. State, 9 Fla. 530 (Fla.1861) ], an invalid order which is null and void and of no force and effect cannot eo instanti vest jurisdiction in a court to which removal is purportedly made by such invalid order. See, Turner v. State, 99 So. 334 (Fla.1924).
Judge Spencer held a hearing to reconsider the venue question in light of Chief Judge Gary's order. Judge Spencer concluded:
[O]n balance, the court continues to consider Tallahassee the preferred location for the reasons set forth in this court's order of May 6, 1992. If Tallahassee is unavailable because of Judge Gary's order, then Orlando would be the appropriate alternative location for the trial.
Accordingly, Judge Spencer denied objections to moving the trial to Tallahassee, reaffirmed his May 6 order, and conditioned the venue for Lozano's retrial on the viability of Chief Judge Gary's order. Judge Spencer ruled that if Chief Judge Gary's order were to remain in effect, the retrial would be held in Orlando; but if that order were to be reversed, the retrial would be held in Tallahassee.
The State sought review of Chief Judge Gary's order. Lozano opposed the State's Petition.
We begin by noting that Judge Spencer had jurisdictional authority to issue his orders in this case. Judge Spencer was the presiding judge in the Eleventh Judicial Circuit when he issued the original change of venue order on April 2, and he continued to be the presiding judge when he issued the Supplemental Order removing the case to the Second Judicial Circuit in Tallahassee. After the Supplemental Order was entered, Chief Judge Gary assumed the role of the successor judge in this case since no administrative order had been entered to temporarily reassign Judge Spencer to the Second Judicial Circuit and no other judge had been assigned to preside over the matter.
As the successor judge, Chief Judge Gary had only limited authority to issue orders inconsistent with his predecessor's rulings. Tingle v. Dade County Bd. of County Comm'rs, 245 So.2d 76 (Fla.1971). Limits have proved necessary " 'to promote the stability of decisions of judges of the same court and to avoid unseemly contests and differences that otherwise might arise among them to the detriment of public confidence in the judicial function.' " Epperson v. Epperson, 101 So.2d 367, 369 (Fla.1958) (quoting Payne v. Superior Court, 78 R.I. 177, 80 A.2d 159, 163 (1951)).
Change of venue orders implicate unique concerns. We can find no Florida appellate decision shedding light on how the principles that limit the authority of successor judges should apply to change of venue orders. A few cases in other jurisdictions have discussed the issue and expressed reasoning that we find persuasive.
In Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3d Cir.1982), a judge applied 28 U.S.C. Sec. 1406(a) (1976) to remove a suit that had been filed in the District of Columbia, finding that proper venue and personal jurisdiction over the defendant existed in New Jersey. The judge who had been assigned to the case in New Jersey then transferred the case back to the District of Columbia, concluding that the case had been improperly transferred because the court had no personal jurisdiction over the defendant in New Jersey. The Circuit Court reversed and held that absent unusual circumstances, a trial court's order transferring a case is the law of the case subject only to appropriate appellate review. The court applied its holding by reasoning that the personal jurisdiction issue, whether correct or incorrect, had been decided by the first trial judge and was not subject to review by the successor judge in the new venue. The decision was based primarily on the law of the case doctrine, with consideration given to public policy and the judicial rule of comity. See also United States v. Koenig, 290 F.2d 166, 173 n. 11 (5th Cir.1961) (Wisdom, J.) (transfer order "constitutes law of the case" and should be accepted by the transferee court " 'except under the most impelling and unusual circumstances' or if the transfer order is 'manifestly erroneous.' ") ), affirmed on other grounds sub nom., DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962).
In Brinderson-Newberg Joint Venture v. Pacific Erectors, Inc., 690 F.Supp. 891 (C.D.Cal.1988), the court held that a trial court should apply a strong presumption of validity to a transfer executed pursuant to a contract's forum selection clause. Analogizing the situation to a transfer pursuant to 28 U.S.C. Sec. 1404(a), the court reasoned that Id. at...
To continue reading
Request your trial
-
Government Employees Ins. Co. v. Burns
...such requirement is contained in section 47.122.5 A sua sponte order transferring venue in a criminal case was considered in State v. Gary, 609 So.2d 1291 (Fla.1992), but the judge's statutory authority to initiate a transfer was not at issue in that case.6 The federal statute states:(a) Fo......
-
State v. Lozano
...challenge to Judge Gary's order on jurisdictional grounds was upheld and the trial remained scheduled for Tallahassee. State v. Gary, 609 So.2d 1291 (Fla.1992). Lozano then moved the trial court for another change of venue, arguing that his rights of equal protection and to a fair trial wou......
-
O'Neal v. Darling
...Groover v. Walker, 88 So. 2d 312 (Fla. 1956) ); McBride v. McBride, 352 So. 2d 1254 (Fla. 1st DCA 1977) ; see also State v. Gary, 609 So. 2d 1291, 1293 (Fla. 1992) (holding successor judge had limited authority to issue orders inconsistent with his predecessor's rulings, those limits are ne......
-
WASHINGTON MUT. BANK, FA v. Shelton, 2D03-3629.
...figures on at least two occasions and that the Sheltons had not tendered a sufficient amount on those occasions. See State v. Gary, 609 So.2d 1291, 1293-94 (Fla.1992); Gadson v. Jenne, 882 So.2d 531, 533 (Fla. 4th DCA 2004). After previously failing in their attempts to reinstate the first ......