Copeland v. State

• Decision Date: 30 November 1954
• Citation: 76 So.2d 137
• Parties: Charlie COPELAND, Jr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 137

76 So.2d 137

Charlie COPELAND, Jr., Appellant, v. The STATE of Florida, Appellee.

Supreme Court of Florida, En Banc.

Nov. 30. 1954.

Sam B. Wilson, Releford McGriff, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., Mark R. Hawes, Asst. Atty. Gen., William A. Hallowes, III, Jacksonville, for appellee.

MATHEWS, Justice.

This is an appeal from a judgment and sentence of death based upon a verdict of guilty without recommendation for mercy in a rape case.

On July 24, 1953, the Grand Jury in Duval County returned an indictment against the appellant charging him with rape of a female in Duval County on the 11th day of July, 1953. The indictment was brought under F.S. Section 794.01, F.S.A., and charged that the appellant did 'ravish and carnally know, forcibly and against the will of her, * * * contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida.' This statute, F.S. Section 794.01, F.S.A., was in full force and effect at the time of the indictment and at the time of the trial and had not been repealed, amended or changed, unless, as contended by the appellant, the penalty for the crime was changed by Chapter 28158, Laws of Florida 1953.

The primary question presented on this appeal is the contention of the appellant that the Circuit Court of Duval County, Florida, which has criminal jurisdiction in capital cases only, did not have jurisdiction to try, convict and sentence the appellant to the penalty of death, because of the provisions of Chapter 28158, Laws of Florida 1953, designated as amendments to the 'Child Molester Act'. Under the Child Molester Act, as amended, the sentence of a person convicted of the rape of a person who is fourteen years or under shall not exceed twenty-five years in the State prison at Raiford, Florida. The title to the 1953 amendments to the Child Molester Act is as follows:

'An act to Amend Section 801.02; Paragraph (a) of Subsection (1) of Section 801.03; Subsection (2) of 801.03; Subsection (3) of Section 801.08; Subsection (2) of Section 801.12; and Further Amending Section 801.12 by Adding a New Subsection (3) Thereto; Amending Section 801.13 and Repealing Section 801.14, Florida Statutes 1951, Relating to the Child Molester Act, Providing for Sentencing, Commitment, Treatment, Parole Release, and Discharge of Persons Convicted of Certain Sex Offenses Against, to, or With Persons Fourteen Years of Age or Under.'

Section 1 of the Act provides:

'Section 1. Section 801.02, Florida Statutes, 1951, is amended to read:

'801.02 Definitions.-An offense under the provisions of this Chapter shall include rape, attempted rape, sodomy, attempted sodomy, crimes against nature, attempted crimes against nature, lewd and lascivious behavior, assault (when a sexual act is completed or attempted) and assault and battery (when a sexual act is completed or attempted), when said acts are committed against, to, or with a person fourteen years of age or under.'

Section 2 of the Act provides:

'Section 2. Paragraph (a) of Subsection (1) of Section 801.03, Florida Statutes 1951, is amended to read:

'801.03 Powers and duties of judge after convictions.

'(a) Sentence said person to a term of years not to exceed twenty-five years in the State prison at Raiford, Florida.'

Section 2 of the 1951 Act became F.S. Section 801.02, F.S.A., and Subsection (1) of Section 3 of the 1951 Act empowered the trial judge to sentence said person to the sentence otherwise provided by law. This became Paragraph (a) of Subsection (1) of F.S. Section 801.03, F.S.A., and, as amended, provided that the judge should, 'Sentence said person to a term of years not to exceed twenty-five years in the state prison at Raiford, Florida.' Thus the penalty for rape was materially changed from that of death where the verdict was guilty without a recommendation of mercy to a sentence of not to exceed twenty-five years when the female raped was fourteen years of age or under.

The trial began on September 21st and ended on September 23rd, 1953. At no time before or during the progress of the trial did the appellant question the jurisdiction of the Circuit Court or raise any such objection as that now presented. After verdict of guilty without recommendation for mercy was rendered by the Jury on the 23rd day of September, 1953, the appellant filed a motion for new trial on the 8th of October, 1953, upon the following grounds:

',1. The Court was without jurisdiction to proceed with the trial of this defendant.

'2. The Court erred in failing to grant the defendant's motion to strike from the record confessions presented by the State, which were allegedly procured by illegal means.

'3. The Court erred in admitting into evidence the Record of the preliminary hearing before Judge Sarah Bryan.'

It should be noted that the general ground that the Court was without jurisdiction did not specify in what particular the Court was without jurisdiction and did not raise the question now presented.

On the 23rd day of October, 1953, the appellant filed what he calls an amended or extraordinary motion in arrest of judgment and for new trial, which set forth the following grounds:

'1. The Court was and is without jurisdiction to try the defendant for the offense charged in the indictment, the same not being a capital offense under the provisions of Chapter 28158, Laws of Florida, effective as of June 15, 1953.

'2. That the sentence herein to be imposed would exceed the penalty provided for by law.'

From the record it appears that the first suggestion that the Court was without jurisdiction because of the provisions of the Child Molester Act, that is, Chapter 28158, Laws of Florida 1953, was when this so-called amended or extraordinary motion was filed.

The Courts were open and the writ of prohibition was available to the appellant to raise the question of jurisdiction of the Circuit Court prior to the time of trial. He did not avail himself of this or any other remedy and raised no objection to the jurisdiction of the Circuit Court. Notwithstanding the fact that there is no statute in the State of Florida which makes any provision for an amended or extraordinary motion for a new trial, it appears from the record that the Circuit Judge entertained, seriously considered and passed upon the question presented by the so-called extraordinary motion, and in his order denying the same said:

'We are not unmindful of the importance of questions involving the constitutionality of laws, but we deem the particular portion of the Act in question to be clearly unconstitutional and we therefore hold that so much of Chapter 28158, Laws of 1953, as includes the offense of rape is violative of the constitutional restrictions. * * *'

The extraordinary motion for a new trial was irregular and the Circuit Judge was not compelled to consider and pass upon the same. However, this was an extraordinary case presenting the question of jurisdiction of the Court which involved constitutional questions. In the exercise of his discretion, the trial Judge considered and passed upon the motion. Although we do not approved the practice, we cannot say that under the circumstances of this case, the trial Judge abused his discretion. See Kirkland v. State, 70 Fla. 584, 70 So. 592; Casey v. State, 116 Fla. 3, 156 So. 282; Brown v. State, 135 Fla. 30, 184 So. 518. Certainly, the appellant cannot complain of the procedure, even though such extraordinary motion was out of time and irregular, for the consideration of the same was for his benefit. Indeed, the appellant's only complaint is that after the trial Judge exercised his discretion and considered and passed upon the extraordinary motion, the opinion and judgment rendered was contrary to his contentions.

On the 30th day of October, 1953, the Circuit Judge entered the only judgment and sentence which he could enter on the verdict rendered by the Jury.

The appellant appealed to this Court on the following grounds:

'1. That the Court was without jurisdiction to try the defendant for the offense charged in the indictment, the same not being a capital offense under the provisions of Chapter 28158, Laws of Florida, effective as of June 15, 1953.

'2. That said sentence imposed exceeds the penalty provided by law.

'3. The Court erred in failing to grant defendant's motion to strike from the record confession presented by the State, which were allegedly procured by illegal means.

'4. The Court erred in admitting into evidence the Record of the preliminary hearing before Judge Sarah Bryan, Justice of the Peace.

'5. The verdict of the Jury affirmatively appears to be contrary to manifest weight of evidence or was motivated by prejudice, passion, mistake or other improper cause.

'6. The Court erred in refusing to grant defendant's motion for new trial.'

When the appellant raised the question that the Circuit Court was without jurisdiction to try him and that the sentence imposed was an unlawful sentence because of the provisions of the Child Molester Act, the action of the State Attorney and the Attorney General in attacking the validity of the Child Molester Act, as it applied to rape, was proper. It would be ridiculous to tie the hands of the State and say that it could not attack the validity of the Child Molester Act when the appellant, after trial and conviction, seeks the aid of such Act in an attempt to escape the penalty of the rape statute, F.S. Section 794.01, F.S.A.

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