Delaney v. State, 34541

• Decision Date: 28 September 1966
• Docket Number: No. 34541,34541
• Citation: 190 So.2d 578
• Parties: Robert William DELANEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 578

190 So.2d 578

Robert William DELANEY, Appellant, v. STATE of Florida, Appellee.

No. 34541.

Supreme Court of Florida.

Sept. 28, 1966.

Julius F. Parker, Jr., and Parker, Foster & Madigan, Tallahassee, for appellant.

Earl Faircloth, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

PER CURIAM.

On trial by jury the appellant was found guilty of an attempt to commit 'the abominable and detestable crime against nature,' in violation of F.S. Section 800.01, F.S.A. Instead of adjudging the appellant guilty and imposing sentence on him the trial judge entered an order which withheld adjudication of guilt and placed appellant on probation for a period of five years. In doing so the judge acted pursuant to F.S. Section 948.01, F.S.A. It is this order which is before us for review by way of appeal.

In taking his appeal directly to this court the appellant proceeded on the theory that we have jurisdiction because the trial court, in denying pre-trial motions to dismiss the indictment under which he was tried, passed directly upon the validity of F.S. Section 800.01, F.S.A. as it applies to this appellant under the facts of this case.

The appellee-State argues that this court does not have authority to entertain this appeal because our appellate jurisdiction in criminal matters is limited to review of final judgments and the probation order here involved is not a final judgment.

The State is correct in arguing that the finality of a judgment is generally measured by whether it marks an end to the judicial labor in the cause. Slatcoff v. Dezen, Fla.1954, 72 So.2d 800; State v. Barone, Fla.1960, 124 So.2d 490. It is true, as the State points out, that if any one of a number of circumstances occurs the trial court may thereupon resume jurisdiction over the defendant-appellant and enter other orders, including a judgment adjudicating guilt and passing sentence.

Prior to the passage, by the 1959 Legislature, of the present Section 948.01 an accused could be placed on probation, but only after a formal adjudication of guilt by the court. Thus only the imposition of sentence could be withheld. Under the new section the court may place on probation a defendant who has pleaded guilty or nolo contendere, or been found guilty after trial, without first entering a judgment of guilt of conviction.

The obvious purpose of the new procedure was to provide for the rehabilitation of one who had committed a crime without formally and judicially branding the individual as a convicted criminal with consequent loss of civil rights and other damning consequences.

The legislature wisely recognized that this new procedure could precipitate argument over whether a probation order entered without adjudication of guilt was a final or appealable order. To forestall any confusion it amended F.S. Section 924.06(2) F.S.A. to grant an individual subject to such an order the right of appeal therefrom '* * * in the same manner and with the same scope and same effect as if judgment of conviction had been entered and appealed from.' However, the fact that such an order is appealable is not enough to satisfy the constitutional limitation that permits this court to review by appeal only 'final judgments or decrees.'

Whether a probation order entered after final judgment of conviction would be a final order in the appellate sense we are not required to answer now. We are concerned here only with a case in which the sole order entered in and dispositive of the defendant's rights is a probation order. We have concluded that in such a case the probation order must be considered, at least for purposes of appeal, to be a final order. We do this realizing that if such order be later revoked it could be followed by a final judgment of conviction and sentence. Treating such a probation order as a final order is unusual, but then the procedure which allows disposition of a criminal proceeding without a formal and final judgment of conviction is also unusual. We think the unusual procedure requires the unusual result we have reached.

One of the more obvious practical reasons which leads us to hold this probation order to be a final judgment for appeal purposes is that it is necessary where the facts warrant to give the appellant, in this and every like case, the right of appeal to that court which has constitutional authority to review orders passing upon the validity of a statute or construing a constitutional provision. In the instant case, if we were to hold that the subject order is not appealable to this court, it would have to go to a district court of appeal, which court would not have authority to review the orders passing on the validity of the statute. Moreover, if the subject order were not considered to be a final order, it could be argued with force and logic that review or that order would not extend to previous orders such as those denying the motions to quash in this cause. Add to this the fact that we have no provision allowing review of pre-trial interlocutory orders in criminal cases and it becomes apparent that to construe such an order as the one here presented to be anything other than a final order could deny the person subject thereto the appellate review which the legislature obviously intended that he have.

This conclusion requires that we next determine whether the order presents a question within our jurisdiction to review. The State does not contend that we lack jurisdiction because the order appealed from does not pass upon the validity of a state statute. Nevertheless, we mention, in passing, that a final judgment, as we hold this one to be, brings with it for review the prior orders entered in the cause. In this instance the two orders denying the motions to quash the indictment, each of which in effect upheld the validity of F.S. Section 800.01, F.S.A., traveled forward with the order of probation and satisfy the jurisdictional requirement.

Turning to the merits, appellant cites respectable authorities in support of his argument that at common law the 'abominable and detestable crime against nature' could only be committed Per anum and not Per os. In this case appellant was charged with having committed the act Per os. Alternatively, he contends that (1) if Section 800.01 be construed as prohibiting only the common law offense, i.e., when committed Per anum, the indictment was defective because it charged no crime; or (2), if the statute be construed as prohibiting such an act committed Per os, it is invalid because it constitutes an attempt to create a new crime by language too vague and indefinite to apprise a person of what is prohibited. This, says the appellant, makes the statute void because of vagueness in violation of due process standards of both state and federal constitutions.

The State questions the appellant's reading of the common law as not prohibiting copulation Per os, but replies that, in any event, this court long ago construed F.S. Sec. 800.01 F.S.A. to extend to such acts and that appellant is bound thereby. We agree.

If the construction of this statute were here for the first time it would be necessary for us to determine whether at common law the crime here involved included acts committed Per os. It is unnecessary for us to do so now because this court has on several occasions already considered and answered this very question contrary to appellant's contention. Ephraim et al. v. State, 1921, 82 Fla. 93, 89 So. 344; Jackson v. State, 1922, 84 Fla. 646, 94 So. 505; English v. State, 1935, 122 Fla. 77, 164 So. 848; Lason v. State, 1943, 152 Fla. 440, 12 So.2d 305; Fine v. State, 1943, 153 Fla. 297, 14 So.2d 408; and McElveen v. State, Fla.1954, 72 So.2d 785.

The real question before us, then, is whether these earlier constructions of the statute have become a part of the statute and the law of this state in the sense that these decisions, together with the statutory language, afforded the appellant sufficient notice that acts committed Per os as well as Per anum were prohibited by the statute. We hold that they did.

In this state, as in most others, the rule prevails that in reenacting a statute the legislature is presumed to be aware of constructions placed upon it by the highest court of the state, and, in the absence of clear expressions to the contrary, is presumed to have adopted these constructions. Rabinowitz v. Keefer et al., 1931, 100 Fla. 1723, 132 So. 297; Depfer v. Walker, 1936, 125 Fla. 189, 169 So. 660. Indeed, there is substantial authority for the proposition that such reenactment of the statute bars the court from subsequently changing its earlier construction. Rabinowitz v. Keefer, supra; 8 Fla.Jur., Courts, Sec. 152 (1956); 82 C.J.S. Statutes, § 370 (1953). In Johnson v. State, Fla.1956, 91 So.2d 185, we applied this rule to a criminal statute, expressly overruling a contrary construction by dictum in Grimes v. State, Fla.1953, 64 So.2d 920.

We do not agree with appellant that this rule is rendered inapplicable here by the circumstances that our prior construction of the statute is broader than the one he contends for. This argument might have been valid on the occasion of the initial judicial construction, on ground of a violation of the prohibition against Ex post facto legislation. However, it clearly would not be appropriate as to subsequent applications of the statute as construed. Bouie et al. v. City of Columbia, 1963, 378 U.S. 347, 84 S.Ct. 1697, ...