Bedami v. State

• Decision Date: 29 April 1959
• Docket Number: No. 964,964
• Citation: 112 So.2d 284
• Parties: Joe BEDAMI, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 284

112 So.2d 284

Joe BEDAMI, Petitioner, v. STATE of Florida, Respondent.

No. 964.

District Court of Appeal of Florida, Second District.

April 29, 1959.

Rehearing Denied June 1, 1959.

Frank Ragano of Hawes & Ragano, Tampa, for petitioner.

Richard W. Ervin, Atty. Gen., Edward S. Jaffry, Asst. Atty. Gen., for respondent.

ALLEN, Judge.

The petitioner, Joseph Bedami, in the midst of his trial in the Criminal Court of Record of Hillsborough County, filed a sworn application for a subpoena duces tecum to compel the production of the stenographic notes and transcription of the testimony previously given by the state's witness, Traina, concerning the case before the county solicitor in which the petitioner contends the solicitor was acting in an official investigation to determine whether or not the charges embraced in the impending information should be filed against petitioner. The application was sworn to and set out in substance that the witness Traina had, prior to the filing of the pending information, appeared before the county solicitor in an official investigation, inquisitorial in natural, where the said solicitor was acting in effect as a one-man grand jury determining whether to file the pending information against petitioner. That said witness had testified before the solicitor to matters material to and covering and touching on the subject matter of his testimony in chief, and that said testimony was taken down stenographically and transcribed, and was then in the possession of the solicitor, his assistants, reporters, secretaries, or other employees. That petitioner had been informed by some people who had talked to the witness, Traina, subsequent to his giving testimony before the solicitor and prior to his testimony at the trial, that Traina had said in effect that the testimony he gave the solicitor and the testimony he would give at the trial would be different and in conflict. That it was essential to the administration of justice and in order that the petitioner may be enabled to properly cross-examine the witness Traina and to lay the proper predicate for impeachment of the said witness, in the event his statement before the solicitor was in fact substantially in conflict with his trial testimony, that he have said testimony. That the denial of said application would deprive the petitioner of his rights secured under Section 11 of the Declaration of Rights to the Florida Constitution, F.S.A., to have compulsory process for the attendance of witnesses in his favor, as well as his rights to due process of law and equal protection of the law as guaranteed and protected by the Fourteenth Amendment to the Federal Constitution.

The record shows no denial, traverse or other challenge to the sworn application for the subpoena. The application was denied by the trial judge. An appeal was taken to the circuit court which affirmed the criminal court of record. It is to this order of the circuit court that the petition for certiorari is directed.

The respondent questions the power of this court to review the decision of the circuit court sitting as an appellate court because of the limited nature and scope of common law certiorari and cites the case of Benton v. State, 74 Fla. 30, 76 So. 341, 343, as authority for its contention.

We have reviewed the decision of the Supreme Court in Benton v. State, supra, which is a splendid discussion on the limitation of appellate review by a superior court through common law certiorari. The Court, in its opinion, states:

'It is sought by this proceeding to have this court review the evidence taken before the county judge and determine its sufficiency to support the verdict, and in doing that to first determine whether certain evidence offered by the state and admitted over the defendant's objection was admissible, and, if we find that it was not, then to quash the proceedings before the circuit court, which affirmed the judgment of the county judge, as being illegal. To do this would be to confound the supervisory power of this court with its appellate jurisdiction.

'It appears from the record that the county judge had jurisdiction of the offense and the person of the defendant, and that the circuit court as the court of final appellate jurisdiction acquired jurisdiction in accordance with the forms prescribed by law, and acted within the limits of its jurisdiction and powers; and, no question being raised as to the validity of the act under which the prosecution was held, the proceedings of the circuit court appear to be legal, and the writ should be quashed, because in this proceeding this court has no power to inquire into the alleged error committed in admitting certain evidence--that is to say, no power to question the correctness of the judgment on its merits. It is therefore ordered that the writ of certiorari be and the same is hereby quashed.'

In Mathews v. Metropolitan Life Insurance Co., Fla.1956, 89 So.2d 641, it is stated that the duty of the trial judge to apply a correct principle of law to admitted facts is such a fundamental and essential element of the judicial processes that a litigant cannot be said to have had the 'remedy by due course of law' guaranteed by DR § 4 if he fails or refuses to perform that duty.

In State v. Staley, Fla.App.1957, 97 So.2d 147, this Court held that on certiorari the court could remedy the erroneous application of correct principles of law to admitted facts. And in Martin v. Powell, Fla.App.1958, 101 So.2d 610, it was held that where the doctrine of res ipsa loquitur was incorrectly applied the resulting judgment was illegal and could be quashed on certiorari.

The petitioner in the instant case contends that his constitutional rights were infringed by the refusal of the judge of the criminal court ot permit him to subpoena the notes of the reporter in order to obtain the testimony of the state's principal witness where he had appeared before the county solicitor and testified for the purpose of determining whether or not an information should be filed against the defendant for the purpose of cross-examining this witness to see if there were contradictory statements made in the sought testimony and the testimony of the said witness on the trial. We hold that under the stated question we would have power under common law certiorari to review the record to determine if the constitutional rights of the defendant have been violated.

The Supreme Court of Florida in the case of Trafficante v. State, 1957, 92 So.2d 811, 814, held that the defendant's sworn application for subpoena duces tecum to obtain the transcript of the testimony which state witness had given before the grand jury, set up materiality of evidence sought to be reached by subpoena, application would be taken, for purpose of appeal involving alleged error in denial by trial court of application and offer of proof, as proving materiality to extent necessary to warrant examination of transcript by trial court with view to making final determination of its materiality, and that the refusal of the trial judge to permit the same was error.

Under the law in Florida, the solicitor of the criminal court of record has power to file a direct information if he chooses. As an alternate procedure, the state's attorney can bring a witness before the grand jury and have the grand jury file an indictment against the defendant, which in turn can be certified by the circuit judge to the criminal court of record for trial. From the indictment so transferred, the county solicitor can then file an information.

In the case of Trafficante v. State, supra, the Supreme Court said:

'Later, at the trial, when the witness Dietrich was tendered to defense counsel for cross-examination, appellants presented to the court a sworn application for subpoena duces tecum to be directed to the official court reporter. This application set out that the official reporter had reported and transcribed the witness Dietrich's testimony before the grand jury, and that said testimony was material and relevant to, and in conflict with, the testimony of this witness given on direct examination at the trial. Appellants offered to prove these facts. The application and offer of proof were denied by the trial court.

'Appellants contend that they had a right to the issuance of the subpoena duces tecum to compel the court reporter to appear as a defense witness and to bring with her the transcript of the witness Dietrich's testimony as given before the grand jury, making same available to defense counsel in order that it might be utilized in cross-examination of the witness Dietrich. In support of their contention, appellants rely upon our opinions in Vann v. State, Fla., 85 So.2d 133, and State ex rel. Brown v. Dewell, 123 Fla. 785, 167 So. 687, as well as the case of United States v. Aaron Burr, Fed.Cas.No.14,692d. They also contend that they were denied their rights under the 14th Amendment to the Federal Constitution and Section 11 of the Declaration of Rights of the Florida Constitution, F.S.A., the latter of which provides that in all criminal prosecutions the accused 'shall * * * have compulsory process for the attendance of witnesses in his favor.' The State contends, however, that these authorities do not compel the result sought by appellants because, in the State's view, the witness Dietrich's testimony before the grand jury was not material to the issues in this case, and the grand jury presentment or findings had not been made public at the time of trial.

'We cannot accept the contention of the State herein. Appellants' sworn application for the subpoena, as we have stated, sets up the materiality of the evidence sought to be reached by the subpoena and must be taken for the purpose of this appeal as proving materiality to the extent necessary to warrant examination of the transcript by the court with a view to making final determination of its materiality. See Vann v....