State v. Hernandez, s. 36594
| Decision Date | 23 December 1968 |
| Docket Number | 36595,Nos. 36594,s. 36594 |
| Parties | The STATE of Florida, Appellant, v. Joseph HERNANDEZ, Appellee. |
| Court | Florida Supreme Court |
Richard E. Gerstein, State's Atty., Joseph Durant, Asst. State's Atty., Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellant.
Robert L. Koeppel, Public Defender, and Edward J. Winter, Jr., Asst. Public Defender, for appellee.
We have for review consolidated appeals from the Dade County Criminal Court of Record. That Court quashed two informations filed by the State Attorney against the appellee for violations of Fla.Stat. § 398.19(1)(d) (1965) F.S.A. This statute proscribes unlawfully obtaining narcotic drugs by giving a false name or by giving a false address. Violations of § 398.19(1)(d) are non-capital felonies. Fla.Stat. 398.22(2) (1965) F.S.A. The trial court held that organic due process precludes a prosecution of an information unsupported by a prior indictment or a preliminary hearing showing probable cause.
We are called upon to decide whether the prosecution of appellee by information not preceded by an indictment or a probable cause hearing constitutes an unconstitutional deprivation of due process of law.
Fla.Stat. § 904.01 (1965), F.S.A., plainly authorizes the institution of the instant prosecution by direct information for it expressly provides:
'All capital offenses shall be tried on indictment by a grand jury, and All other cases may be tried either by indictment by grand jury or information filed by the prosecuting attorney under oath, except as is otherwise provided in the constitution of the state, and excepting cases of impeachment and in cases in the militia when in active service in time of war, or which the state with consent of congress may keep in time of peace.' (Emphasis supplied.)
See also similar provision in Fla.Const.Dec. of Rights, § 10, F.S.A.
From the foregoing it is clear that there is no constitutional requirement under Florida law that a prosecution for a non-capital felony be instituted by an indictment. Furthermore, there is no federal constitutional impediment to dispensing entirely with the grand jury system in State prosecutions. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884).
A preliminary hearing is for the purpose of determining if probable cause exists to hold one accused for trial and is not an indispensable prerequisite to the filing of an information. Palmieri v. State, 198 So.2d 633 (Fla.1967); Rouse v. State, 44 Fla. 148, 32 So. 784 (1902). Prosecution may be instituted and maintained regardless of whether probable cause is or is not found. Palmieri v. State, supra; Baugus v. State, ...
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Gerstein v. Pugh 8212 477
...by information, without a prior preliminary hearing and without obtaining leave of court. Fla.Rule Crim.Proc. 3.140(a); State v. Hernandez, 217 So.2d 109 (Fla.1968); Di Bona v. State, 121 So.2d 192 (Fla.App.1960). At the time respondents were arrested, a Florida rule seemed to authorize adv......
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...a prosecution may be instituted even though there is a finding of no probable cause at a preliminary hearing." Id. (citing State v. Hernandez, 217 So.2d 109 (Fla.1968)). Although the court in Green did not discuss the collateral estoppel issue in depth, its holding that collateral estoppel ......
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...1026.' 198 So.2d at 634--635. We have reviewed this record in the light of the Supreme Court's decision in Palmieri and in State v. Hernandez, Fla.1968, 217 So.2d 109, and hold that the appellant has totally failed to show he was prejudiced by the failure to hold a preliminary hearing. The ......