State v. G.P.

• Decision Date: 12 April 1983
• Docket Number: No. 82-1357,82-1357
• Citation: 429 So.2d 786
• Parties: The STATE of Florida, Appellant, v. G.P., a juvenile, Appellee.
• Court: Florida District Court of Appeals

Page 786

429 So.2d 786

The STATE of Florida, Appellant, v. G.P., a juvenile, Appellee.

No. 82-1357.

District Court of Appeal of Florida,

Third District.

April 12, 1983.

Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Paul Morris, Sp. Asst. Public Defender, for appellee.

Before HENDRY, NESBITT and FERGUSON, JJ.

ON MOTION TO DISMISS

NESBITT, Judge.

The state appeals from the trial court's dismissal of a petition for delinquency because of a violation of the juvenile's constitutional right to a speedy trial. The juvenile seeks dismissal of the appeal on the basis that the state does not have the right to appeal such an order. We agree.

The state, in support of its contention that it may appeal the order presently under review, cites State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), pet. for review denied, 419 So.2d 1201 (Fla.1982), holding that the state has a constitutional right of appeal from an order discharging the juvenile on speedy trial grounds. W.A.M., supra, relied upon dictum from Crownover v. Shannon, 170 So.2d 299 (Fla.1964), in which the court held that habeas corpus is a civil proceeding subject to the time limitations for civil appeals. ^{1 1} The court, in Crownover, proceeded to observe that prior to 1957 when the district courts of appeal were created, the Constitution did not provide the procedure for invoking the jurisdiction of the supreme court, but rather left such matters to the legislature. This was changed by the amendments to Article V of the Constitution which included the following provision concerning the district courts of appeal's jurisdiction:

Appeals from trial courts in each appellate district ... may be taken to the court of appeal of such district, as a matter of right, from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court.

Art. V, § 5(3), Fla. Const. (1957).

This section "lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment," Gray v. Bryant, 125 So.2d 846, 851 (Fla.1960), and therefore, it is self-executing. See State v. Harris, 136 So.2d 633 (Fla.1962) (holding that the constitutional provision authorizing the supreme court to review conflicting decisions of the district courts is self-executing). By definition, then, no statute was necessary to breathe life into the constitutional section authorizing appeals. As a necessary corollary, the jurisdiction conferred upon the court by the constitution could not be diminished nor enlarged by an act of the legislature. See Warren v. State, 174 So.2d 429 (Fla. 1st DCA 1965). Accordingly, we would agree with the dictum in Crownover to the effect that:

The right to appeal from the final decisions of trial courts to the Supreme Court and to the District Courts of Appeal has become a part of the Constitution and is no longer dependent on statutory authority or subject to be impaired or abridged by statutory law, but of course subject to rules promulgated by the Supreme Court regulating the practice and procedure.

170 So.2d at 301.

Since the jurisdictional provision makes no distinction between the state's right to appeal and any other party litigant's, the state should enjoy the same rights as all others, with the obvious exception of the double jeopardy bar. ² The court concluded, in W.A.M., supra, that although there have been changes in the constitution since the 1957 amendment relied on in Crownover, supra, ³ the state's constitutional right to appeal remains intact.

Notwithstanding the foregoing arguments in favor of the state's right to appeal, the First District, in State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976), held that the right of the state to appeal from a final judgment in a criminal case is entirely statutory in nature. ⁴ Accord State v. C.C., --- So.2d (Fla. 3d DCA) (Case Nos. 81-2564, 82-666, 82-797, 82-1825, opinion filed March 24, 1983). Without a discussion of the constitutional changes, the court, in Brown, supra, relied upon the supreme court decision thirty years earlier in Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947), which stated that the right of the state to appeal from final judgments in criminal cases was entirely statutory. While we find that these amendments alter the rule stated in Whidden, supra, we are compelled to follow that decision until the supreme court rules otherwise. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We recognize that we are in conflict with W.A.M., supra.

Turning then to the present case, it is readily apparent that Section 39.14, Florida Statutes (1981) has not legislatively conferred upon the state the right to appeal a juvenile's discharge for a speedy trial violation. Consequently, we agree with the defendant that the state has no right to appeal the juvenile's discharge on constitutional speedy trial grounds.

Both parties seem to be in agreement that because there is no right to appeal we may elect to treat the present notice of appeal as a petition for common law certiorari. An historical overview of the development of the common law writ of certiorari ⁵ leads us to conclude that the state may not utilize the petition to seek review of a final judgment in a criminal case not otherwise appealable.

Prior to the 1957 constitutional amendment, the power of the supreme court included the power:

to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus and also all writs necessary or proper to the complete exercise of its jurisdiction.

Art. V, § 5, Fla. Const. (1885). The power to issue writs of certiorari, and in appropriate cases, writs of prohibition or mandamus, enabled the supreme court to exercise supervisory jurisdiction over inferior courts. Mutual Ben. Health & Accident Ass'n v. Bunting, 133 Fla. 646, 183 So. 321 (1938).

Thus, even though prior to 1957 the constitution vested the circuit court with final appellate authority, the supreme court had jurisdiction, on certiorari, to review the circuit court's determinations. State v. Andres, 148 Fla. 742, 5 So.2d 7 (1941). This supervisory power was not a second appeal, see Benton v. State, 74 Fla. 30, 76 So. 341 (1917), but rather was limited to a determination of:

whether the judgment sought to be reviewed is illegal or is essentially irregular or prejudicial and materially harmful to the party duly complaining; to the end that the commands, prohibitions and limitations of controlling law may prevail in the administration of the law.

Mutual Ben. Health & Accident Ass'n v. Bunting, supra, at 325. Stated another way, the supreme court's power of review by certiorari extended to final proceedings of inferior courts:

when they proceed in a cause without jurisdiction, or when their procedure is essentially irregular and not according to the essential requirements of law and when no appeal or direct method of reviewing the order or proceedings exists.

Cacciatore v. State, 147 Fla. 758, 3 So.2d 584, 586 (1941) and cases cited therein.

Under the 1957 amendment, the supreme court's jurisdiction to review final judgments by certiorari was limited to the issuance of writs necessary or proper to the exercise of its jurisdiction. Art. V, § 4(2), Fla. Const. (1957). ⁶ However, the district courts of appeal were given the power to issue writs of mandamus, certiorari, prohibition, and quo warranto, and also all writs necessary or proper to the complete exercise of its jurisdiction.

Art. V, § 5(3), Fla. Const. (1957). Thus, the appellate courts, at their inception, were given jurisdiction to issue writs of certiorari. With respect to that jurisdiction, the supreme court stated:

[T]his Court [supreme court] no longer has extensive power to issue so-called "common law writs of certiorari" to review judgments of lower courts. This power is now vested in District Courts of Appeal and Circuit Courts, by Article V, Section 5 and 6, Florida Constitution. In situations in which review of a judgment or decree of a lower court is not otherwise provided for, the District Courts of Appeal are endowed with powers of review limited to a determination of whether the judgment constitutes a deviation from the essential requirements of the law. In a general way, this is the type of so-called common-law certiorari power exercised by this Court prior to the effective date of amended Article V, on July 1, 1957.

Robinson v. State, 132 So.2d 3, 5 (Fla.1961), rev'd on other grounds, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964). Utilizing this limited jurisdiction, the district courts have often reviewed decisions of the lower court sitting in its appellate capacity. See, e.g., State v. Mobley, 133 So.2d 334 (Fla. 2d DCA 1961), quashed on other grounds, 143 So.2d 821 (Fla.1962); State v. Katz, 108 So.2d 60 (Fla. 3d DCA 1959), State v. Staley, 97 So.2d 147 (Fla. 2d DCA 1957); State v. Atwell, 97 So.2d 125 (Fla. 2d DCA 1957).

Having examined the historical underpinnings of the district courts' power of certiorari, we conclude that the courts' review by certiorari of final judgment is limited to the supervisory review of a decision of a lower court sitting in its appellate capacity where the circuit court has departed from the essential requirements of law. ⁷ , ⁸ Nellen v. State, 226 So.2d 354 (Fla. 1st DCA 1969); see also Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979), Fla.R.App.P. 9.030(b)(2)(B). Where the court has a jurisdictional limitation to the consideration of the appeal from a final judgment; certiorari may not be used to circumvent that limitation. State v. Brown, supra; Nellen v. State, supra; Couse v. Canal Authority, 197 So.2d 841 (Fla. 1st DCA 1967), cert. discharged, 209 So.2d 865 (Fla.1968). We recognize that we are in conflict with several of our sister courts which have adopted a more expansive...