Farrior v. State

• Decision Date: 16 November 1954
• Citation: 76 So.2d 148
• Parties: William D. FARRIOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 148

76 So.2d 148

William D. FARRIOR, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida, Division B.

Nov. 16, 1954.

Wm. W. Flournoy, De Funiak Springs, for appellant.

Richard W. Ervin, Atty. Gen., and Mark R. Hawes, Asst. Atty. Gen., for appellee.

HOBSON and DREW, Justices.

Appellant was tried before a jury on Wednesday, May 13, 1953, for larceny of an automobile. On the same date, a verdict of guilty was returned, judgment on the verdict entered, and sentence pronounced. On the following Monday, May 18, 1953, a motion for new trial was filed. This motion was denied, without explanatory comment appearing of record, on May 21, 1953. It is contended by appellant that denial of the motion was error.

The State asserts that the motion for new trial was a nullity, for failure of appellant to comply with the statutory requirement that it be 'made within four days, or such further time as the court may allow, not to exceed fifteen days, after the rendition of the verdict * * *.' F.S. § 920.02(3), F.S.A., because the motion was not filed until the fifth day after the verdict was rendered, the fourth day having been a Sunday, and the record shows no application for an extension of time in which to file. Since the State thus contends that the case stands the same as if no motion for new trial had been made, McLendon v. State, 90 Fla. 272, 105 So. 406, it further reasons that there can be no review of the question sought to be presented, which is predicated upon alleged insufficiency of the evidence to sustain the verdict. See Gilbert v. State, 148 Fla. 293, 4 So.2d 330, where no motion for new trial was disclosed by the record, and cases therein cited.

Appellant, on the above issue, takes the position that the statutory four-day requirement for filing a motion for new trial is qualified by Rule 7(a) of the Florida Common Law Rules of 1950, in effect when the case was tried (Present Rule 1.6) which provided in part that '(i)n computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute * * * (t)he last day of the period so computed shall be counted unless it is a Sunday or a legal holiday, in which event the period shall run until the end of a next day which is neither a Sunday nor a holiday.' This position is plainly untenable, since the Common Law Rules were and are intended to apply only to civil actions and do not affect the separate statutory framework which governs criminal procedure.

On the particular point involved, however, it was once otherwise, for Comp.Gen. Laws 1927, Sec. 8413, which was repealed by Laws, 1939, c. 19554, Sec. 319, and has now been superseded by F.S.Sec. 920.02, F.S.A., supra, read 'motions for new trial and in arrest of judgment shall be made in the time and manner prescribed for similar motions in civil cases.' And in Burnett v. State, 145 Fla. 220, 198 So. 827, we held that under Sec. 8413, supra, the rule laid down in the civil case of Florida East Coast R. Co. v. George, 91 Fla. 42, 107 So. 266, that an intervening Sunday falling within the four day period prescribed for filing a motion for new trial in civil cases should be excluded, was applicable in a criminal case. But the Burnett case must now be regarded as no longer law, because of the repeal of Section 8413 by the legislature and the fact that no similar provision has been supplied to fill the hiatus thereby created.

Since the statutes governing criminal procedure make no specific provision for the exclusion of Sunday from the four-day period prescribed, and the case is not controlled by the rules pertaining to actions at common law and suits in equity, we must accept F.S. Section 920.02 (3), F.S.A., as it is written. This statute is mandatory, and unless an extension is obtained with leave of the court, the four-day time limit is absolute. Baxley v. State, 72 Fla. 228, 72 So. 677; Koon v. State, 72 Fla. 148, 72 So. 673; Kirkland v. State, 70 Fla. 584, 70 So. 592.

The record fails to disclose an application for an extension of time for filing a motion for new trial nor does it reflect a formal order allowing additional time for filing such a motion. We do not, however, interpret Section 920.02(3), supra, as requiring that a written application for an extension of time for filing a motion for a new trial be made within four days after verdict or that a formal order granting leave of court for an extension beyond four days after rendition of the verdict be entered. The statute simply provides that 'a motion for a new trial may be made within four days, or such further time as the court may allow, not to exceed fifteen days, after the rendition of the verdict * * *'. The statute does not say that after four days have passed the court cannot then allow a new trial motion to be filed. If the legislature had intended that no extension of time be allowed unless application for same was made within four days after verdict, undoubtedly it would have so stated as it did state in Section 4498, C.G.L.1927, F.S.A. § 54.24, 'the judge upon cause shown may within such four days and during the same term by order extend the time for the making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict.' It is significant that the...