Stanek-Cousins v. State , 896 So. 2d 865 ( 2005 )

896 So.2d 865 (2005)

Catherine STANEK-COUSINS, Appellant,
v.
STATE of Florida, Appellee.

No. 5D03-3168.

District Court of Appeal of Florida, Fifth District.

February 25, 2005.

Michael R. Morris, of Morris & Morris, P.A., West Palm Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.

THOMPSON, J.

Catherine Stanek-Cousins appeals her judgment and sentence for manslaughter. She argues that the proper court to hear her appeal is the Fourth District Court of Appeal. We agree and transfer the case to the Fourth District Court of Appeal.

Cousins was indicted for the premeditated murder of her husband, Sean Cousins. The Cousinses were residents of Palm Beach County, but the body of Sean Cousins was found in Osceola County, in the jurisdiction of the Fifth District Court of Appeal. At the time the case was presented to the grand jury, the state could not determine where the crime had been committed; thus, the state charged that it could have occurred in several counties.^[1] Cousins was indicted in the Ninth Judicial Circuit in and for Osceola County, Florida, and arrested on 26 November 2002. Cousins was held in jail in Osceola County while the Public Defender for the Ninth Judicial Circuit investigated the case for one year. On 24 March 2003, Cousins filed a motion to elect venue in Palm Beach County pursuant to Florida Rule of Criminal Procedure 3.240, but stated that she was not waiving her speedy trial rights. The trial court granted Cousins's motion to change venue.

The Public Defender for the Ninth Judicial Circuit filed a motion to withdraw, alleging that over objection, the trial court directed the Public Defender to represent Cousins at the trial in West Palm Beach. The trial court denied the motion on 9 April 2003. The trial court stated that Cousins had refused to waive her right to a speedy trial and that it had repeatedly explained the ramifications of counsel's dilemma to Cousins. Nevertheless, Cousins insisted that she would not waive speedy trial. The trial court concluded that because Cousins refused to waive a speedy trial, a new attorney would not have sufficient time to prepare to defend Cousins against the instant charge.

Cousins and her co-defendant, Timothy Koile^[2] were tried simultaneously in the Fifteenth Circuit in West Palm Beach, with Cousins being represented by attorneys from the Public Defenders Office for the Ninth Judicial Circuit and attorneys from Palm Beach. The jury found Cousins guilty of the lesser count of manslaughter. The trial court ruled that venue would return to Osceola County, where Cousins was sentenced to fifteen years in the Department of Corrections.

Although several issues have been raised on appeal, we find the issue concerning our jurisdiction dispositive. Cousins elected to be tried in Palm Beach County, and the trial court granted the motion. Thus, venue was transferred, and she was tried and convicted in Palm Beach County, which is in the Fifteenth Judicial Circuit. See § 26.021(15), Fla. Stat. (2003). Appeals from cases tried in Palm Beach County are heard by the Fourth District Court of Appeal. See § 35.042, Fla. Stat. (2003). In Vasilinda v. Lozano, 631 So.2d 1082 (Fla.1994), the Florida Supreme Court was faced with determining which appellate court had jurisdiction to hear an appeal after venue was transferred. The court wrote:

Once the change of venue has become effective, appellate jurisdiction shall be in the district court of appeal which serves as the district court of appeal for the transferee court, even if the challenged order was entered before the change of venue.

Id. at 1087.

Applying the holding in Vasilinda, it is ordered that the instant case be TRANSFERRED to the Fourth District Court of Appeal.

SAWAYA, C.J., and PETERSON, J., concur.

NOTES

[1] The indictment alleged that the murder occurred between May 6 and May 12, 2001, and that the murder could have occurred in Palm Beach, Martin, St. Lucie, Indian River, Brevard, or Osceola County. Sean's body was found in Osceola County.

[2] During the course of the trial, Koile pleaded guilty to the crime of second-degree murder. In exchange for his plea and testimony against Cousins, he received a sentence of eight to ten years, followed by five years probation. Koile has also filed an appeal with this Court, however, his appeal is limited to the amount of restitution awarded by the trial court.