121 So.2d 192 (Fla.App. 2 Dist. 1960), 1402, Di Bona v. State

Docket Nº:1402.
Citation:121 So.2d 192
Party Name:Guido DI BONA, Appellant, v. STATE of Florida, Appellee.
Case Date:June 10, 1960
Court:Florida Court of Appeals, Second District

Page 192

121 So.2d 192 (Fla.App. 2 Dist. 1960)

Guido DI BONA, Appellant,


STATE of Florida, Appellee.

No. 1402.

Florida Court of Appeals, Second District.

June 10, 1960

Page 193

Ray Sandstrom, Sandstrom & Hodge, Fort Lauderdale, for appellant.

Richard W. Ervin, Atty. Gen., Joseph Nesbitt, Asst. Atty. Gen., for appellee.

ALLEN, Chief Judge.

The appellant was charged by information with knowingly unlawfully receiving or unlawfully concealing a stolen white mink coat the value of which was in excess of $100. The appellant was found guilty by a jury and judgment and sentence was entered thereon by the court.

During an investigation of a fur theft by the Fort Lauderdale police and the Broward County sheriff's office, it was discovered that appellant was involved in the selling or disposing of these furs. At approximately 2:00 a. m. on December 30, 1958, the appellant was asked to come to police headquarters. It was disclosed that during the preceding afternoon several furs and numerous rings were found and taken from the business establishment of a Mr. Baines known as Porky's Hideaway by a deputy sheriff of Broward County. At approximately midnight on the same day, two of these furs were identified by a Mr. Chohany as being furs which had been 'stolen' from his place of employment on May 15, 1958. Immediately thereafter an arrest order was issued for appellant and Mr. Baines. Baines was placed under arrest at 1:00 a. m. Baines then apparently confessed to aiding in the disposition of stolen property and also implicated appellant in the offense When appellant was brought in to the police station and confronted with Baines the appellant purportedly made an oral confession after being warned of his constitution rights. This confession was reduced to writing by his interrogators and the appellant signed it after he had been permitted to call his attorney.

The appellant now contends that since there was no evidence implicating him at the time the arrest order was issued, and since he was arrested without a warrant, he was therefore entitled to a preliminary hearing. The record discloses that although appellant was 'asked' to come to police headquarters, after Baines made his statement, appellant was retained or, in other words, was not free to leave, and subsequently was actually placed under arrest.

The appellant contends that a preliminary examination, pursuant to section 901.23, F.S.A., is an indispensable prerequisite to a criminal prosecution in which a defendant is taken into custody without a warrant. A preliminary hearing is in the nature of an inquiry with the purpose being to determine if probable cause exists to justify holding the accused for trial. Davis v. State, Fla.1953, 65 So.2d 307. It likewise is the purpose of section 901.23 to require the officer, after arrest and without unnecessary delay, to make or cause to be made an affidavit before the magistrate before the issuance of a warrant, or give the prosecuting attorney sufficient evidence upon which an information can be filed. If a warrant is not obtained, the officer can give to the prosecuting attorney the necessary evidence for the filing of an information and issuance of a capias.

As to whether a preliminary examination is an indispensable prerequisite to the filing of an information, the Supreme Court in Rouse v. State, 44 Fla. 148, 32 So. 784, 785, stated:

Page 194

* * * Under our system a preliminary investigation of a criminal charge by a committing officer is not an indispensable prerequisite to the finding of an indictment by a grand jury, or the filing an information by a prosecuting attorney of a criminal court of record. The grand jury may indict where there has been no such investigation, and so the prosecuting attorney in a criminal court of record may act without reference to any investigation by a committing magistrate. * * *.'

Moreover, the provisions of section 32.18, Fla.Stat., F.S.A. and Constitutional Declaration of Rights, sec. 10, F.S.A., relating to the provision that all offenses in a criminal court of record shall be prosecuted...

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