State v. Lozano

• Decision Date: 10 March 1993
• Docket Number: No. 93-684,93-684
• Citation: 616 So.2d 73
• Parties: , 18 Fla. L. Weekly D712 STATE of Florida, Petitioner, v. William LOZANO, Respondent.
• Court: Florida District Court of Appeals

Page 73

616 So.2d 73

61 USLW 2571, 18 Fla. L. Weekly D712

STATE of Florida, Petitioner, v. William LOZANO, Respondent.

No. 93-684.

District Court of Appeal of Florida First District.

March 10, 1993.

Petition for writ of certiorari to the Circuit Court for Leon County, ¹ Judge W. Thomas Spencer. ²

Robert A. Butterworth, Atty. Gen., Janet Reno, State Atty. for Eleventh Judicial Circuit, and Richard L. Shiffrin, Sp. Asst. Atty. Gen., for petitioner.

Roy Black, Black & Furci, Miami, for respondent.

PER CURIAM.

This case serves to remind us that under our constitution, we are governed by rules that ensure a fair trial. The State of Florida petitions this court for a writ of certiorari to review a non-final order of the Circuit Court for Leon County which denied the defendant's motion for change of venue, a motion in which the State had joined. We grant the petition.

William Lozano is Hispanic and of Colombian descent. While on duty as a City of Miami police officer, he shot and killed the Black driver of a motorcycle who was attempting to avoid a stop for a traffic infraction. A passenger on the motorcycle, also a Black male, died from injuries from the resulting crash of the motorcycle. Serious civil disturbances immediately followed in Dade County.

Subsequently, Lozano was tried and convicted of two counts of manslaughter. On appeal, the District Court of Appeal for the Third District found that the trial court had committed reversible error when it denied the defendant's motion for change of venue. The defense had sought the change on the theory that jurors would be reluctant to vote for acquittal for fear of causing further violence in the community. The court reversed and remanded for a new trial in another venue. Lozano v. State, 584 So.2d 19 (Fla. 3d DCA1991), review denied, 595 So.2d 558 (Fla.1992).

After a hearing, Lozano's trial was moved to Orlando in the Ninth Judicial Circuit by Judge W. Thomas Spencer. Later, however, by order dated May 6, 1992, Judge Spencer moved the trial to Tallahassee, Leon County, in the Second Judicial Circuit, on his own motion without notice and without a hearing. A copy of the May 6, 1992 order (omitting footnotes) is included in this opinion as Appendix "A." Chief Judge William Gary of the Second Circuit entered an order which returned the case to Orlando, but the State's 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 would be violated by trial in Leon County, which has a very small Hispanic population. He also argued that an impartial verdict was impossible in Tallahassee, as in Dade County, because of fear of racial violence. Movant made additional arguments for venue change based on pre-trial publicity and the alleged procedural deficiencies involved in the issuance of the order which moved the trial from Orlando to Tallahassee. The only issue raised by the State and properly before this court for determination concerns the validity of the reasons stated by the trial court in determining that the trial should be moved from Orlando to Tallahassee.

After the trial court took evidence and heard argument on the motion for change of venue, the State joined in the motion insofar as the defendant contended Leon County was not a proper venue because of its small Hispanic population and because Tallahassee was selected as the site for the trial solely upon racially-based reasons. ³ Despite this joinder, Judge Spencer denied the motion. The State petitioned for writ of certiorari and moved for a stay. We granted the stay and, after considering the pleadings and arguments of the parties, we grant certiorari.

In civil proceedings, non-final orders which concern venue are appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A). No corresponding right of interlocutory appeal exists in criminal cases, but the State may seek review by petition for writ of certiorari. State v. Pettis, 520 So.2d 250 (Fla.1988). In order to obtain relief, petitioner must demonstrate that the order to be reviewed departs from the essential requirements of law and causes material injury to the petitioner throughout the proceedings below, leaving no adequate remedy on appeal from final order. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). Additionally, a petition for writ of certiorari must be filed within 30 days of rendition of the order to be reviewed, and that time limit is jurisdictional. See Fla.R.App.P. 9.100(c)(1); Hofer v. Gil De Rubio, 409 So.2d 527 (Fla. 5th DCA 1982).

Initially, we were concerned that our jurisdiction had not been timely invoked, as petitioner, in effect, challenges the May, 1992, order which moved the trial from Orlando to Tallahassee. While the respondent did file objections challenging the trial court's order in the summer of 1992, the State's challenge to the order was not presented to the trial court until March 5, 1993, and the petition for writ of certiorari was filed the same day that challenge was rejected. It may be argued that the State's challenge was untimely; we decline, however, to adopt a rule which would preclude the State from asserting at any time that continued prosecution under the circumstances would constitute a violation of the constitutional rights of a criminal defendant. We therefore conclude that the petition for writ of certiorari was timely filed.

We next address the question of whether the petitioner can show an injury which cannot be remedied on appeal from a final order. Ordinarily, the time, trouble, and expense of an unnecessary trial are not considered "irreparable injury" for these purposes, Continental Equities, Inc. v. Jacksonville Transportation Authority, 558 So.2d 154 (Fla. 1st DCA 1990). The "irreparable injury" test must be satisfied in a certiorari proceeding that arises from a criminal case, as well. See Tart v. State, 96 Fla. 77, 117 So. 698 (1928); Mingle v. State, 429 So.2d 850 (Fla. 4th DCA 1983); Smith v. State, 187 So.2d 61 (Fla. 2d DCA 1966). The Third District's reversal of Lozano's Dade County convictions shows that denial of a motion for change of venue, if erroneous, can be corrected on plenary appeal and a new trial ordered. We must determine whether the unique circumstances of this case create an exception to the rules above which would ordinarily preclude our review of Judge Spencer's order at this point in the proceedings. Petitioner argues that the irreparable harm test is met by the unnecessary expenditure of resources and the difficulties borne by the defendant, the witnesses, and other interested persons in the conduct of a second trial where reversal for a third trial is almost certain if the defendant is convicted. If this case existed in a vacuum, we would be inclined to find this argument unpersuasive, see Continental Equities. We are well aware, however, of the substantial resources of law enforcement and the judiciary which have been and no doubt will continue to be expended with regard to the State's prosecution of Lozano. We also are cognizant that both the State and the defense believe that to proceed with the trial in Leon County would be violative of the defendant's constitutional guarantees of a fair trial and equal protection and that, should a conviction result, an appeal would very likely result in a reversal with directions that a third trial be conducted. ⁴ In light of the intense media coverage of this case, the problems with providing Lozano a fair trial increase with each trial. Further, we are persuaded by the State's argument that it should not be required to prosecute an individual in circumstances which it believes are violative of the defendant's constitutional rights. ⁵ We agree that public confidence in our criminal justice system cannot be maintained under such circumstances, and that either a conviction or an acquittal resulting from such a trial would be inherently suspect. We therefore conclude petitioner has satisfied the "irreparable injury" requisite to obtain certiorari relief.

We also find that petitioner has shown that Judge Spencer's order is a departure from the essential requirements of law. The May, 1992, order of transfer from Orlando to Tallahassee is clear in grounding the ruling on the basis of race, particularly the race of the victims. No consideration was given to the race of the defendant. We agree, as the parties here assert, that the trial court deliberately acted so as to increase the number of Black jurors. In doing this, the trial court virtually guaranteed the absence of Hispanic jurors. "[P]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). The precise question presented here is apparently a novel one, see Epps v. State, 901 F.2d 1481 (8th Cir.1990); see also Mallett v. Missouri, 494 U.S. 1009, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990) (Marshall and Brennan, JJ., dissenting with written opinion from denial of certiorari). Nevertheless, the State of Florida, as prosecuting authority, announced its determination after a full evidentiary hearing that it agreed with the defendant's claim that his constitutional rights would be violated if he stood trial in Leon County. Denial of the defendant's motion, as joined by the State at that time, was a departure from the essential requirements of law.

We grant certiorari and quash the trial court's order of March 5, 1993, which denied the motion for change of venue. We find that the effect of this disposition is to void the order of May 6, 1992, which moved the trial from Orlando to Tallahassee, and to reinstate the ...