Ward v. State, No. AA--307

CourtCourt of Appeal of Florida (US)
Writing for the CourtSMITH; MILLS; BOYER; BOYER
Citation328 So.2d 260
Decision Date11 March 1976
Docket NumberNo. AA--307
PartiesColon WARD and Wiley Ward, Petitioners, v. STATE of Florida, Respondent.

Page 260

328 So.2d 260
Colon WARD and Wiley Ward, Petitioners,
v.
STATE of Florida, Respondent.
No. AA--307.
District Court of Appeal of Florida, First District.
March 11, 1976.

Page 261

W. Fred Turner, Lynn Haven, Ronald B. Deal, Chipley, and H. Clay Mitchell, Jr., Pensacola, for petitioners.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.

SMITH, Judge.

We stayed proceedings in the trial court while reviewing, by common law certiorari, petitioners' claim that the trial court departed from essential requirements of law in transferring this criminal case from Washington County to Calhoun County for trial.

Petitioners were charged in Washington County with buying, receiving or concealing stolen property there, in violation of § 811.16, F.S.1973. Court was convened in Washington County to impanel a jury and try the case. After several veniremen had been examined on voir dire, in which evidence of rather pervasive newspaper accounts appeared, the prosecutor received and advised the court of information that a prospective juror had been threatened by close personal friends of petitioners. The court then privately interrogated approximately 15 of the remaining members of the venire and discovered that 'no less than five people had been approached either directly or indirectly and promised punishment or gain of reward if they saw that they were seated as a jury panel or petit jury and sat in trial of this matter (and) that they would be rewarded if they voted right and punished if they didn't vote correctly.' The court noted that Colon Ward had previously been convicted of a federal jury tampering charge.

In granting the State's motion for change of venue pursuant to Rule 3.240, R.Cr.P., the court recited that 'it would be impossible to try the Defendants in a fair and impartial manner with this jury venire' and that 'the Court does not believe that a fair and impartial trial of this cause can be conducted in Washington County . . ..' The case was transferred for trial in Calhoun County.

Since 1885, the Florida Constitution has guaranteed to persons accused of crime 'a speedy and public trial by impartial jury in the county where the crime was committed.' Art. I, § 16, Fla.Const. (1968); § 11, Declaration of Rights, Fla.Const. (1885). That guaranty is a legacy of the jurors'

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ancient role, until the latter part of the seventeenth century, as witnesses to the disputed facts:

'The jury, then, was a body of neighbours called in, either by express law, or by the consent of the parties, to decide disputed questions of fact. The decision upon questions of fact was left to them because they were already acquainted with them, or if not already so acquainted with them, because they might easily acquire the necessary knowledge. For this reason it has been said that the primitive jury were witnesses rather than judges.' 1 Holdsworth, History of English Law 156 (1908).

Among the substantial benefits to the accused of a jury drawn from the 'vicinage' was a trial where the accused

'was surrounded by the influences of a good character if he had established one, and where the witnesses were accessible . . ..' Hewitt v. State, 43 Fla. 194, 198, 30 So. 795, 796 (1901).

That Parliament enacted laws authorizing trials for treason in any county in England, which British authorities threatened to employ against recalcitrant colonists, 'was one of the grievances which led to the separation of the American colonies from the British empire.' Swart v. Kimball, 43 Mich. 443, 449, 5 N.W. 635, 638 (1880). Explicit guaranties of trial by a jury of the county or vicinage were therefore written into the original constitutions of Maryland, Massachusetts, New Hampshire, Virginia, Pennsylvania and Georgia. Murphy v. Supreme Court, 294 N.Y. 440, 455, 63 N.E.2d 49, 55, 161 A.L.R. 937, 946 (1945). The local constituency of the jury was thought to be so fundamental that it was held to be implied in the right of jury trial itself. Swart v. Kimball, supra, 43 Mich. at 448, 5 N.W. at 637.

The Florida Supreme Court's first interpretation of the guaranty in the 1885 Constitution was entirely consistent with the deep concern...

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3 practice notes
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...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 bef......
  • Stone v. State, 48275
    • United States
    • United States State Supreme Court of Florida
    • November 1, 1979
    ...North v. State, 65 So.2d 77 (Fla.1952), Aff'd North v. Florida, 346 U.S. 932, 74 S.Ct. 376, 98 L.Ed. 423 (1954). See also Ward v. State, 328 So.2d 260 (Fla. 1st DCA The record discloses that of thirty-seven prospective jurors only two were excused because they had formed an opinion. Twenty-......
  • Beckwith v. State, No. TT-431
    • United States
    • Court of Appeal of Florida (US)
    • August 7, 1980
    ...for a more persevering effort to secure an impartial jury in Liberty County. Article I, Section 16, Florida Constitution; Ward v. State 328 So.2d 260 (Fla. 1st DCA The trial court based its order changing venue on the testimony of several witnesses and on the court's own observations of the......
3 cases
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...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 bef......
  • Stone v. State, 48275
    • United States
    • United States State Supreme Court of Florida
    • November 1, 1979
    ...North v. State, 65 So.2d 77 (Fla.1952), Aff'd North v. Florida, 346 U.S. 932, 74 S.Ct. 376, 98 L.Ed. 423 (1954). See also Ward v. State, 328 So.2d 260 (Fla. 1st DCA The record discloses that of thirty-seven prospective jurors only two were excused because they had formed an opinion. Twenty-......
  • Beckwith v. State, No. TT-431
    • United States
    • Court of Appeal of Florida (US)
    • August 7, 1980
    ...for a more persevering effort to secure an impartial jury in Liberty County. Article I, Section 16, Florida Constitution; Ward v. State 328 So.2d 260 (Fla. 1st DCA The trial court based its order changing venue on the testimony of several witnesses and on the court's own observations of the......

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