Turner v. State
| Decision Date | 18 February 1924 |
| Citation | 87 Fla. 155,99 So. 334 |
| Parties | TURNER v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Osceola County; C. O. Andrews, Judge.
Neal Turner was convicted of murder in the second degree, and he brings error.
Reversed and remanded for new trial.
(Syllabus by the Court.)
Thomas Palmer, of Tampa, for plaintiff in error.
Rivers Buford, Atty. Gen., and J. B. Gainess, Asst. Atty. Gen., for the State.
Neal Turner was indicted in Polk county on the 21st day of October, 1919, for the murder of Rodney Wilson.
On November 6, 1919, at the same term of the court counsel for the state and counsel for Neal Turner presented to the court the following stipulation:
On consideration of the foregoing stipulation the court entered his order transferring said cause to Pasco county, said order being as follows:
'The foregoing petition coming on this day to be heard in open court, and the court being fully advised in the premises, and being satisfied that the ends of justice will be more fully complied with by changing the venue as prayed for herein: It is therefore ordered and adjudged that the prayer of said petition be granted and the venue of said cause be changed, and the cause be transferred from this county and circuit to the circuit court of Pasco county, Sixth judicial circuit of Florida, and the clerk of this court is hereby ordered to transfer the records in this case to the circuit court of said Pasco county, as required by law.
Pursuant to the foregoing order Neal Turner was on the 19th day of April, 1920, arraigned and tried in Pasco county. The jury failed to agree on a verdict, and the cause was continued for the term.
On April 5, 1921, Neal Turner came on to be tried the second time in Pasco county, and on motion of the state attorney the case was remanded to Polk county; the pertinent portion of the remanding order being as follows:
'The foregoing cause coming on this day to be heard before me, and the state attorney having moved the court to remand said cause to Polk county, Fla., for the reason that the same was not properly transferred from the circuit court of Polk county to this circuit, and this court finding upon inspection of the record and proceedings in said cause, transmitted by the clerk of the circuit court of Polk county, Fla., to the clerk of the circuit court of Pasco county, Fla., that no petition was ever filed by the defendant before the judge of the circuit court of Polk county, Fla., setting forth facts showing that it was impossible for the defendant to obtain a fair trial in Polk county, and that no affidavits or evidence of any kind was submitted to the circuit judge of Polk county, Fla., by the defendant in support of an application for a change of venue; that the defendant was never required to give bond as required by provisions of section 4001 of the Florida Compiled Laws, annotated, West publication, and section 6103 of the Revised Statutes; that the clerk of the circuit court of Polk county failed to transmit a certified copy of the entries in the record in the office of the clerk of the circuit court of Polk county, relating to the said cause to the clerk of the circuit court for this Pasco county, and the defendant being present before this court and his attorneys, in the presence of the defendant, stating to the court that they did not, neither did the defendant, ask for a change of venue from Polk county to this county, except as shown by the record, and the defendant being present in court, with his counsel, and making no objection to this cause being remanded to the circuit court of Polk county, Fla., for such other and further proceedings as may be in accordance with law, and the court being of the opinion that the said cause is not properly before this court, and that this court is without jurisdiction to proceed with the trial of said cause, and being fully advised in the premises, it is, upon consideration thereof, ordered and adjudged that the motion of the state attorney be granted, and that the said cause be and the same is hereby remanded to the circuit court in and for Polk county, Fla., for such further proceedings therein as may be in accordance with law.'
On the 11th day of October, 1921, and cause came on again to be heard in Polk county when Neal Turner entered his plea in abatement questioning the authority of the circuit court of Polk county to hear and determine said cause, and challenging the determine said cause, and challegnging the legality of the remanding of said cause from shown. The state attorney demurred to the plea in abatement, which demurrer was sustained, and on October 19, 1921, defendant filed his motion for change of venue. This motion was joined in by the state attorney and the case was transferred to Osceola county.
The trial in Osceola County October 2, 1922, resulted in a verdict of murder in the second degree and sentence to 25 years at hard labor in the state prison. A motion in arrest of judgment and for new trial were regularly entered and denied, and defendant took writ of error.
The first ground urged by Neal Turner for reversal is in substance that the circuit court of Pasco county erred in his order dated April 5, 1921, remanding this cause from Pasco back to Polk county.
Inspection of the order of April 5th discloses that the cause was remanded because a proper petition showing that it was impossible to secure a fair trial for defendant in Polk county was not filed with the court, and that defendant was not required to give bond as provided by section 6103, Revised General Statutes of Florida, 1920.
Section 6099, Revised General Statutes of Florida 1920, in effect provides that, when it shall be made to appear to the presiding judge of any court in this state that the venue of any cause pending in his court should be changed because a fair and impartial trial cannot be had in the county where the crime was committed,...
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...court from reducing Castle's sentence to comport with the amendment to the substantive criminal statute. See also, e.g., Turner v. State, 87 Fla. 155, 99 So. 334 (1924) (approved life sentence for second-degree murder even though second-degree murder statute was amended before sentencing to......
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...provided by changes in the criminal statute prior to trial, cf., Reynolds v. State, 33 Fla. 301, 14 So. 723 (1894); Turner v. State, 87 Fla. 155, 99 So. 334 (1924); and Sing v. State, 115 So.2d 773 (1st D.C.A.Fla.App.1959). Finally, it should be noted that Art. 10, Section 9, Florida Consti......
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