Di Bona v. State, 1402

• Decision Date: 10 June 1960
• Docket Number: No. 1402,1402
• Citation: 121 So.2d 192
• Parties: Guido DI BONA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 192

121 So.2d 192

Guido DI BONA, Appellant, v. STATE of Florida, Appellee.

No. 1402.

District Court of Appeal of Florida, Second District.

June 10, 1960.

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 * * * 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 on information under oath filed by prosecuting attorney, have been held to not require that informations filed by a solicitor of the criminal court of record be based solely and exclusively on testimony taken before him in determining whether the action should be instituted. Neither the court nor the defendant may inquire into the sufficiency of the evidence presented to the county solicitor as a basis for the information because the solicitor is the sole and final judge in the determination of whether the evidence is adequate to support the filing of the information. Prevatt v. State, 135 Fla. 226, 184 So. 860; Anderson v. State, 134 Fla. 290, 183 So. 735. It is noted that even if the defendant is granted a preliminary hearing, and the committing magistrate discharges the defendant for lack of probable cause, the officers may still turn over the evidence to the solicitor and, under the above authorities, the solicitor would be warranted in determining de novo whether probable cause existed.

In the instant case the defendant was placed under arrest at approximately 4:00 a. m., December 30, 1958 and was permitted to contact his attorney after being advised of his constitutional rights. Shortly thereafter, upon being confronted with the testimony and person of Donald Baines, an accomplice of defendant, the defendant then made certain oral admissions and written confessions indicating his guilt. On the same date, an information was filed by the solicitor charging ...