Combs v. State

• Decision Date: 01 September 1982
• Docket Number: No. 82-890,82-890
• Citation: Combs v. State, 420 So.2d 316 (Fla. App. 1982)
• Parties: Melvin James COMBS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 316

420 So.2d 316

Melvin James COMBS, Petitioner, v. STATE of Florida, Respondent.

No. 82-890.

District Court of Appeal of Florida Fifth District.

Sept. 1, 1982.

Rehearing Denied Oct. 6, 1982.

Howard H. Babb, Jr., Public Defender, and Laura Melvin, Asst. Public Defender, Ocala, for petitioner.

No appearance for respondent.

ON PETITION FOR WRIT OF CERTIORARI

DAUKSCH, Judge.

In this Petition for Writ of Certiorari we are solicited to review an alleged error made by the circuit court sitting in its appellate review capacity. The circuit judge sat in review of a county court judgment of conviction in a Driving While Intoxicated case. We are petitioned to review the county court judgment and the decision of the circuit court concerning a question of law regarding the use of statements made to an officer investigating an automobile accident; which statements were used later against the defendant in his criminal trial. See State v. Coffey, 212 So.2d 632 (Fla.1968) and Goodis v. Finkelstein, 174 So.2d 600 (Fla. 3d DCA 1965) and the various cases which discuss the statute regarding admissibility of such statements.

Whether or not the county court and the circuit court were in error in their determinations regarding the admissibility of these statements is not for us to decide. Certiorari is not the vehicle for us to review alleged errors of law made by a circuit judge sitting in review of county court judgments. There is no vehicle for that review. The decision of the circuit court is final and not reviewable. City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981); Magnus v. Century Village, Inc., 379 So.2d 145 (Fla. 4th DCA 1980); Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979); Grandin Lake Shores Association, Inc. v. Underwood, 351 So.2d 1131 (Fla. 1st DCA 1977).

In City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980), this court held:

An error must be so flagrant and of such magnitude that a party has been effectively denied his day in court before our certiorari jurisdiction will be invoked. Even though a nonfundamental error should cause reversal in the circuit court it will not prompt our certiorari jurisdiction. (Citations omitted). Thus, the departure from the essential requirements of law necessary to invoke the jurisdiction of this Court must be of such a fundamental nature that it rises to the level of a denial of due process or so fatally infects the proceedings that the judgment cannot answer constitutional muster. This requires a case by case analysis.

At 571.

The only thing we can take by certiorari in this type of case is an alleged "departure from the essential requirements of law" which essentially amounts to violations of due process rights; that is, violations which effectively deny appellate review such as the circuit judge rendering a decision without allowing briefs to be filed and considered, a circuit judge making a decision without a record to support the decision, Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979), or the circuit court dismissing an appeal improperly. Lynch v. State, 409 So.2d 133 (Fla. 5th DCA 1982). The Court of Appeal is not here to provide a second appeal from county court decisions. If we were, why would we need the circuit court as the intermediary? The error as alleged by the petition is noted, but the certiorari is necessarily

DENIED.

COBB, J., concurs.

ORFINGER, C. J., concurs specially with opinion.

ORFINGER, Chief Judge, concurring:

I agree that the writ of certiorari should not issue in this case, because there is no showing that the circuit court in its appellate capacity departed from the essential requirements of law, but I do not agree that the scope of certiorari is as limited as the majority opinion would make it.

Certiorari is a discretionary writ. As this court said in State v. Wagner, 403 So.2d 1349 (Fla. 5th DCA 1981):

If the writ is discretionary, judges are bound to come to different conclusions on when there has been a "complete failure to observe essential requirements of law" or when the lower tribunal committed "an error so fundamental in character as to fatally infect the judgment and render it void." What constitutes a "departure from the essential requirements of law" cannot be corralled within narrow fence lines. One size does not fit all.

See also Matthews v. Metropolitan Life Insurance Company, 89 So.2d 641 (Fla.1956); Chicken 'N' Things v. Murray, 329 So.2d 302 (Fla.1976).

City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981), although nominally a Fifth District case, was decided by judges of the Fourth District because it arose during the time the Fifth District was created. It appears to me to say that even a violation of substantive due process rights does not constitute a basis for the grant of the...