Card v. State

• Decision Date: 09 October 1986
• Docket Number: Nos. 68862,68846,s. 68862
• Citation: 11 Fla. L. Weekly 521,497 So.2d 1169
• Parties: 11 Fla. L. Weekly 521 James Armando CARD, Sr., Appellant, v. STATE of Florida, Appellee. James Armando CARD, Sr., Petitioner, v. Louie L. WAINWRIGHT, etc., Respondents.
• Court: Florida Supreme Court

Page 1169

497 So.2d 1169

11 Fla. L. Weekly 521

James Armando CARD, Sr., Appellant, v. STATE of Florida, Appellee.

James Armando CARD, Sr., Petitioner, v. Louie L. WAINWRIGHT, etc., Respondents.

Nos. 68862, 68846.

Supreme Court of Florida.

Oct. 9, 1986.

Rehearing Denied Dec. 22, 1986.

Larry Helm Spalding, Office of the Collateral Representative, Tallahassee, for appellant/petitioner.

Jim Smith, Atty. Gen. and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee/respondents.

ADKINS, Justice.

On June 3, 1986, this Court granted the application for stay of execution filed by James Armando Card, Sr., who was scheduled for execution the following morning. The stay of execution was filed in conjunction with a petition for writ of habeas corpus and an appeal from an order of the circuit court denying Card's motion to vacate sentence pursuant to Florida Rule of Criminal Procedure 3.850. We have previously affirmed Card's conviction of first-degree murder, robbery and kidnapping and sentence of death. Card v. State, 453 So.2d 17 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).

The stay of execution was entered in order to afford this Court more time to review an issue of first impression. This opinion follows our previous request for supplemental briefing and an oral argument which addressed the various issues presented. We have jurisdiction pursuant to article V, section 3(b)(1) and (9), Florida Constitution, and dissolve the stay of execution and deny all relief.

The issue of first impression that was raised in both the motion to vacate sentence and petition for writ of habeas corpus is based on the following facts. The crimes for which the defendant was charged occurred in Bay County, Florida, located within the Fourteenth Judicial Circuit. On September 28, 1981, the Honorable W. Fred Turner entered a written order granting the defendant's motion for change of venue. The case was transferred from Bay to Okaloosa County, which is in the First Judicial Circuit. The trial was conducted in the First Judicial Circuit by Judge Turner of the Fourteenth Judicial Circuit. The Chief Justice of the Florida Supreme Court never appointed Judge Turner to hear the case in the First Circuit pursuant to article V, section 2 of the Florida Constitution, and Florida Rule of Judicial Administration 2.030(a)(3)(A). After Card was convicted in the First Judicial Circuit, Judge Turner issued an order transferring the file back to Bay County, where he imposed the death sentence in accordance with the jury's recommendation.

Card alleges that Judge Turner, a Fourteenth Circuit judge, lacked authority to conduct a trial in the First Judicial Circuit absent an order of temporary assignment from the Chief Justice of the Florida Supreme Court. As a result, petitioner contends, the First Judicial Circuit was without jurisdiction to hear the case because trials conducted in the First Circuit must be conducted by a judge authorized to preside in that circuit.

We agree with Card that Judge Turner was not authorized to preside over this cause in the First Judicial Circuit. Article V, section 2(b) of the Florida Constitution provides that the Chief Justice of the Florida Supreme Court may assign judges to temporary duty in any court for which the judge is qualified. See also Florida Rule of Judicial Administration 2.030(a)(3)(A). The record does not contain an order from the Chief Justice authorizing Judge Turner to preside over Card's trial after the change of venue was granted. We must now examine the consequences of Judge Turner's oversight in failing to procure a temporary assignment from the Chief Justice.

The lack of an official assignment of a visiting judge to another circuit by the Chief Justice does not necessarily devoid that other court of subject matter jurisdiction. A technical flaw in assignment does not strip a circuit court of subject matter jurisdiction over a cause which is expressly conferred by law. Section 26.012(2)(d), Florida Statutes (1981), provides that the circuit court has jurisdiction over all felony trials. Further, article V, section 5(b) of the Florida Constitution provides that "[j]urisdiction of the circuit court shall be uniform throughout the state." Thus, once venue was properly transferred from the Fourteenth to the First Judicial Circuit, the latter court had subject matter jurisdiction over the cause, and indeed exercised such jurisdiction.

Card asserts that Judge Turner's failure to obtain a temporary assignment from the Chief Justice rendered the judgment void as opposed to voidable. Card must proceed on this basis because he failed to object to Judge Turner presiding over his case, and an objection to a void judgment may be lodged at anytime whereas an objection to a voidable judgment must be made immediately. See State v. King, 426 So.2d 12 (Fla.1982). A circuit court judge who follows a transferred case outside of the circuit without obtaining an order of temporary assignment from the Chief Justice presides over the case as a de facto judge. Actions taken by a de facto judge are merely voidable and not void. Thus, the failure to timely object to Judge Turner's administrative oversight constitutes waiver.

A de facto judge is a judge who functions under color of authority but whose authority is defective in some procedural form. Black's Law Dictionary 375 (5th ed. 1979). The official acts of a de facto judge are valid. State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 28 So.2d 589 (1946).

The presiding trial judge in this instance fits squarely within the definition of a de facto judge. As a circuit court judge, Judge Turner was acting under the color of authority. The procedural defect consisted of Judge Turner's failure to obtain an order of temporary assignment. Undoubtedly, had Judge Turner requested a temporary assignment from the Chief Justice it would have been granted.

The concept of a de facto judge is not new in Florida. In Wiseheart this Court employed the concept of de facto judge to validate the acts of a judge who was appointed in violation of a constitutional provision that prohibits a member of the legislature from being appointed to any civil office that was created, or the emoluments of which have been increased, during the time for which he was elected. In State ex rel. Booth v. Byington, 168 So.2d 164 (Fla. 1st DCA 1964), aff'd, 178 So.2d 1 (1965), the Court utilized the concept of de facto judge to validate actions taken by a county court judge who had allegedly passed the constitutionally mandated retirement age of 70 at the time he took the challenged actions. Similarly in Sawyer v. State, 94 Fla. 60, 113 So. 736 (1927), the court applied the concept of de facto officer to uphold the validity of an information signed, sworn to and filed by an assistant solicitor despite the requirement that only the county solicitor can sign, swear and file an information.

Other jurisdictions have also adopted the concept of de facto judge for the purpose of affirming judgments in cases that are strikingly similar to the case at bar. In Oklahoma Transp. Co. v. Lewis, 177 Okla. 106, 58 P.2d 128 (1936), the court held that a district court judge assigned as a special judge in a county outside of his regular district became a de facto judge of that court when he continued to hold court after expiration of his formal assignment. As a de facto judge, the court concluded, a trial in which he presided was not void and the failure to object at trial was deemed critical. In Martin v. Stumbo, 282 Ky. 793, 140 S.W.2d 405 (1940), the court held that a pro tem county judge who rendered a judgment as a pro tem judge of the quarterly court pursuant to a mistaken belief that his appointment as a county judge automatically made him a judge of the quarterly court, was a de facto judge and his acts were valid. Once again, a court determined that failure to make a timely objection regarding the power and authority of a judge constituted waiver.

The requirement that an objection to the authority of a de facto judge be timely made is not unique to our jurisdiction and is based upon sound principles of public policy. Our holding in Sawyer, regarding the requirement of a timely objection when challenging the authority of a de facto officer applies with equal force when challenging the authority of a de facto judge. In Sawyer, we noted "[n]either the common law nor our statutes favor the policy of a defendant in waiting until the last stage of the cause and attacking such defects by a motion in arrest of judgment, the granting of which would have the effect of unraveling the whole proceeding." 94 Fla. at 85, 113 So. 736.

Further, Card can establish no prejudice resulting from the lack of a technically proper assignment. He never objected to the fact that Judge Turner presided over his case in Okaloosa County. Neither did he move to disqualify Judge Turner pursuant to Rule 3.230(c), Florida Rules of Criminal Procedure. Card has never questioned Judge Turner's complete objectivity in both the conviction and sentence phase of the trial. Card received, by way of motion for change of venue, exactly what he requested, a trial before an impartial jury and an unbiased judge. Both procedurally and substantively Card received a fair trial. Significantly, Card's objection, raised years after the trial, reflects a mere procedural irregularity rather than an infringement on a fundamental constitutional right.

Judge Turner acted as a de facto judge in the First Judicial Circuit and Card's failure to object to Judge Turner's authority to preside over his case constitutes waiver of that issue. Thus, all orders signed by Judge Turner in the First Judicial Circuit are valid.

Card also contends, in both his petition for habeas corpus and motion for post-conviction relief, that Judge Turner erred in transferring the case back to Bay County for sentencing. We find no error. Of...