Cacciatore v. State

• Citation: 3 So.2d 584,147 Fla. 758
• Parties: CACCIATORE v. STATE.
• Decision Date: 22 July 1941
• Court: United States State Supreme Court of Florida

3 So.2d 584

147 Fla. 758

CACCIATORE v. STATE.

Florida Supreme Court

July 22, 1941

Zewadski & Pierce, of Tampa, for petitioner.

J. Tom Watson, Atty. Gen., and Nathan Cockrell, Asst. Atty. Gen for respondent.

CHAPMAN, Justice.

On September 15 1938, Lois Cacciatore was informed against in two counts by the County Solicitor of Hillsborough County Florida, charging her with the possession of intoxicating beverages without having certain State excise taxes stamped on the container thereof. She was arraigned, placed upon trial and convicted, and on November 7, 1938, sentenced to serve a period of thirty days in the county jail and to pay a fine of $100 and court costs, or in default of payment thereof to serve an additional period of sixty days. Defendant's motion for a new trial was duly presented and by an order of the trial court overrruled and denied.

On November 7 1938, Lois Cacciatore sued out a writ of error to review the judgment of conviction and made the same returnable to the Circuit Court of Hillsborough County, Florida, on January 28, 1939. Writ of scire facias ad audiendum errores on said date issued and was served on Honorable Joseph E. Williams, County Solicitor, and Honorable J. Rex Farrior, State Attorney of the Thirteenth Judicial Circuit.

Lois Cacciatore filed her application, and submitted testimony in support thereof, to the Honorable John R. Himes, Judge of the Criminal Court of Record, for an order adjudicating her insolvent so that the costs of the appeal would be taxed against Hillsborough County. The Honorable John R. Himes, on November 16, 1938, made and entered an order denying her petition and application and by the terms of said order refused to adjudicate her to be insolvent. Additional testimony at a subsequent date was submitted as to her insolvency and her application to be adjudged insolvent was denied the second time under date of February 21, 1939, by the Honorable John R. Himes, Judge of the Criminal Court of Record. The Honorable Harry N. Sandler, Circuit Judge, reviewed the order denying the insolvency petition on the part of Lois Cacciatore entered on February 21, 1939, by the Honorable John C. Himes, and on March 27, 1939, entered an order reversing the order denying the insolvency petition and directed that the Judge of the Criminal Court of Record make and enter an order granting said petition of insolvency.

Pertinent provisions of the order of reversal entered by the Honorable Harry N. Sandler on March 27, 1939, are viz.:

'It is further ordered that the entry of this order shall not in anywise affect the jurisdiction of this Court over this cause upon the merits, but that such appeal shall regularly proceed hereafter as in other causes upon writ of error and that only that part of the case involving the insolvency order of the Court below is affected by this order.'

The Honorable John R. Himes, Judge of the Criminal Court of Record, on April 29, 1939, after the going down of the mandate of the Circuit Court reversing the order denying the petition and application for an order of insolvency, made and entered an order adjudicating Lois Cacciatore insolvent and directed that the costs incidental and necessary for the preparing of the record be paid by the County of Hillsborough, and the reporter of the Criminal Court of Record in the same order was directed to make and prepare one original and three copies of the bill of exceptions for use on writ of error. On May 17, 1939, the bill of exceptions was approved and signed by the Honorable John R. Himes, trial Judge, and a transcript of the record in the cause was filed in the Circuit Court on June 7, 1939.

The writ of error issued on November 7, 1938, returnable to the Circuit Court of Hillsborough County, Florida, on the 28th day of January, 1939, and on January 28, 1939, the Honorable Harry N. Sandler, Circuit Judge, entered an order extending the return day of the writ of error in said cause until March 25, 1939. This order was predicated on a written stipulation signed by counsel for petitioner and the county solicitor of Hillsborough County. On March 22, 1939, the second order was entered by the Honorable Harry N. Sandler by the terms of which the return day of the writ of error was extended until April 29, 1939. On April 29, 1939, a third extension order was signed by the Circuit Judge extending the return date of the writ of error until May 15, 1939. On May 19, 1939, the Honorable L. L. Parks, Circuit Judge, entered the fourth order extending the return date of the writ of error until June 10, 1939. Each of the extension orders was predicated on stipulation of counsel for the petitioner and the County Solicitor. The transcript of record was filed in the Circuit Court of Hillsborough County prior to expiration date named or stated in the fourth order of extension, but the return date of the writ of error prior to the entry of the extension orders was January 28, 1939, and the transcript was filed June 7, 1939.

On November 30, 1940, the State Attorney of the Thirteenth Judicial Circuit served written notice on counsel for the petitioner that the case at bar would be called up for hearing and final disposition on the 4th day of December, 1940, before the Honorable L. L. Parks, Circuit Judge, at his office in the Court House at Tampa, Florida. In a verified petition for a writ of certiorari filed in this Court, it is made to appear that the case was presented to the Circuit Judge on writ of error by counsel for petitioner on December 19, 1940. The petition recites that the State Attorney did not, nor the County Solicitor, attend said hearing, but that the State of Florida was represented by private counsel, and after counsel for petitioner had completed argument on the merits, private counsel for the State orally moved the court to dismiss the writ of error on grounds: (1) The transcript of record had not been filed in the Circuit Court prior to January 28, 1939, the return date of the writ of error; (2) the extension orders, respectively, extending the return date of the writ of error was void because the court was without power to extend the return date of a writ of error; (3) the stipulations signed by counsel for the petitioner and the County Solicitor on which the four extension orders were predicated are each void because the County Solicitor was without authority to represent the State of Florida on appeal and this authority was vested in the State Attorney; (4) private counsel admitted that the oral motion for dismissal of the writ of error was made without previous notice to counsel for petitioner. The record fails to disclose a written motion to dismiss of error. The State Attorney had knowledge of the entire proceedings in the cause and a copy of the transcript of the record was served on him about the time of filing the original in the Circuit Court.

On January 23, 1941, the Honorable L. L. Parks, Circuit Judge, entered an order dismissing the writ of error and the reasons assigned therefor being: (a) The County Solicitor was without authority to enter into stipulations with counsel for petitioner and in obtaining the order of court extending the return date of the writ of error; (b) that the power to stipulate was with the State Attorney and not the County Solicitor; (c) the parties and the court had no authority under the law to extend the return date of the writ of error; (d) the order of dismissal cites Fidelity & Deposit Co. v. Manatee County, 78 Fla. 470, 83 So. 268; Armantrout v. State, 90 Fla. 379, 106 So. 126; Dupree v. Elleman, 139 Fla. 809, 191 So. 65.

On petition for writ of certiorari in this Court it is contended that the order of the Circuit Judge dated January 23, 1941, dismissing the writ of error was invalid and unauthorized by law, and the Circuit Judge of Hillsborough County in the entry of said order did not proceed according to the essential requirements of the law for the reasons: (a) The State Attorney waived objections to an extension of the original return date of the writ of error by not filing timely motions to dismiss and in obtaining a ruling thereon the State of Florida could not be heard on the motion to dismiss after the State Attorney had heard full argument on the merits of the case before the Circuit Court of Hillsborough County; (b) the failure to file the transcript of the record on January 28, 1939, as shown by the record, was occasioned by the review of the two orders of the Criminal Court of Record denying the petition and order of insolvency; (c) the stipulations of the counsel and the four orders of the court thereon were intended by the parties to obtain an order on the merits of the appeal and the State of Florida is now estopped from contending that the court had power to dismiss in the absence of a timely motion therefor duly presented; (d) the stipulations supporting the respective orders extending the return day of the writ of error are binding upon the State of Florida and the State Attorney, although signed by the County Solicitor of Hillsborough County and not by the State Attorney.

It is settled law that the Supreme Court of Florida had power to review and quash on the common law writ of certiorari the orders and 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. See Florida Motor Lines v. Railroad Com'rs, 100 Fla. 538, 129 So. 876; Brinson v. Tharin, 99 Fla. 696, 127 So 313; First Nat. Bank v. Gibbs, 78 Fla. 118, 82 So. 618; State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21; South Atlantic Steamship Co. v. Tutson, 139 Fla. 405,...