Gomez v. Spencer

Decision Date08 December 1933
Citation151 So. 395,113 Fla. 220
PartiesGOMEZ v. SPENCER, Sheriff.
CourtFlorida Supreme Court
En Banc.

Original proceeding by Alfonso Gomez for a writ of habeas corpus to W C. Spencer, as Sheriff of Hillsborough County. Petitioner's motion for discharge from custody denied and petitioner remanded to respondent's custody, without prejudice.

COUNSEL

W. B. Dickenson, of Tampa, for petitioner.

Cary D Landis, Atty. Gen., and Robert Pleus, Asst. Atty. Gen., for respondent.

OPINION

BROWN Justice.

Alfonso Gomez recently filed in this court a petition for a writ of habeas corpus, alleging that he was unlawfully detained of his liberty by the sheriff of Hillsborough county. Petitioner alleged that he was arrested in Tampa on November 9, 1933, on a capias issued out of the criminal court of record of Hillsborough county on a supposed information wherein petitioner and certain other persons were charged with assault with the intent to commit murder. A copy of the information and capias is attached to the petition and made a part thereof.

The copy of the information thus attached appears to be sufficient on its face to charge the petitioner with the crime above mentioned. It is indorsed by the clerk of the criminal court of record by his deputy as having been filed on July 3, 1928, and it charges that the offense was committed on June 7, 1928. The copy of the capias appears to be an alias capias in due form issued February 18, 1929.

But the petition alleges that said information was never filed by the county solicitor of Hillsborough county in the records of the criminal court of record of said county within two years after the alleged time of the commission of the offense charged in the information, as required by law, nor was such information docketed in the progress docket or any other docket in the office of the clerk of said court nor entered in the minutes of said court by the clerk or any other officer, within two years after the commission of the alleged offense.

The petition further alleges that on or about the 3d day of July 1928, the then county solicitor swore to the form of the information attached as an exhibit to the petition, and on the said date caused a deputy clerk to mark the same filed and immediately withdrew the same from the office of the clerk of the criminal court of record and retained the same and at the same time instructed that the same be not docketed or entered in the minutes or recorded in any manner in the records of said court, and that the county solicitor did retain the said information and that the same has never been filed or docketed in the records of said court as required by law. That there was never any proceedings in any justice's court or any other court of competent jurisdiction initiating any prosecution of this petitioner upon the said charge, but that the only step in this regard was the attempt to initiate the prosecution as above set forth by the county solicitor. That therefore there was no prosecution of petitioner upon said charge initiated before the expiration of two years after the date of the alleged commission of the offense charged.

A writ of habeas corpus was duly issued and the sheriff filed in this court on November 13, 1933, his return, in which he set forth that he detained the petitioner pursuant to his execution of a certain capias issued by the criminal court of record of said county, under date of November 9, 1933, which capias was in the usual and regular form and had been returned to the court duly executed; that said capias is based upon a certain information duly sworn to by the then county solicitor of Hillsborough county on July 3, 1928, which information 'was duly filed in the office of the clerk of the criminal court of record of said county as shown upon said information, on the 3rd day of July, 1928, under file No. 0527, a copy of which information is attached to the petition herein.'

The sheriff in his return further alleges that he is without knowledge concerning any alleged instructions which the then county solicitor may have given any officer of said criminal county court of record concerning the docketing or not docketing of said information. That he, not being an officer at the time, has no knowledge of the whereabouts of the petitioner until early in the year 1933, when petitioner was arrested by one of his deputies.

The petitioner has moved the court for discharge from custody for the reason that the return of the respondent sets up no sufficient or valid grounds for petitioner's detention. The petitioner's contention is that no prosecution was really commenced within the two years provided by the statute (section 7113, Comp. Gen. Laws) in that the information was not actually filed within contemplation of law, because the county solicitor caused a deputy clerk to mark it filed and immediately withdrew the same from the offices of the clerk and retained the same, and instructed that the same be not docketed or entered in the records of the court; and therefore said information has never been filed or docketed as required by law. The sheriff by his return shows that he is not in a position to negative the allegations of the petition as to the circumstances connected with the filing of the information by the county solicitor. The return does allege that the information was 'duly filed,' as shown by the copy of the information itself, attached to the petition, but alleges that respondent 'is without knowledge' concerning any alleged instructions which the then county solicitor may have given any officer of said criminal court of record concerning the docketing or recording of said information.

Section 7113, Comp. Gen. Laws, provides that: 'All offenses not punishable with death shall be prosecuted within two years after the same shall have been committed.' We have held that under the statute the burden is upon the prosecution, upon trial of the case, to show that the commission of the offense charged was within the statutory period, even though the statute be not specially pleaded.

Section 8257, Comp. Gen. Laws, provides that all offenses of which the criminal court of record has jurisdiction shall be prosecuted 'upon information filed by the county solicitor under oath,' and that the same rules of practice and pleading that now obtain as to indictments shall obtain as to informations.

Section 8258, Comp. Gen. Laws, provides that: 'Informations may be filed with the clerk of the county court and criminal courts of record in vacation, without leave of the court being first had and obtained, and upon information so filed the clerk of said court shall docket cases and issue any and all necessary process, the same as if filed in term time by leave of the court.'

Section 8375, Comp. Gen. Laws, provides that: 'After any person shall be indicted for felony or for a misdemeanor, or after an information shall be filed against him, if he be not already in custody, a capias shall issue for his arrest and shall be directed to all and singular the sheriffs of the State of Florida,' etc.

In the case of State ex rel. Melson v. Peeler, 107 Fla. 615, 146 So. 188, 190, this court held that the mere failure of the clerk to issue capiases on the informations involved in that case until after two years from the commission of the offenses charged did not render the informations subject to the bar of the statute, or affect the jurisdiction of the court, in view of the fact that the prosecutions were begun when the informations were duly filed by the authorized official before the expiration of the two-year period. In the cited case both the informations were filed on March 13, 1931, within two years from the dates on which the offenses were alleged to have been committed, but the capiases were not issued on the informations until August 23, 1932, more than two years after the alleged commission of the offenses charged. Whether or not the clerk docketed the cases after the filing of the informations does not appear; at least no question was raised on that point. It was observed in the cited case that the statute above referred to requires the issuance of process 'as a ministerial duty.' The holding of the court was that the statutory limitation of two years for the institution of a prosecution does not bar the prosecution 'if a sufficient indictment or information is duly filed before the expiration of two years from the date of the commission of the offense' charged. (Italics supplied.)

This holding seems to be in line with the decisions in other jurisdictions. See 16 C.J. 231. And in 31 C.J. 636, it is said:

'While an information must be filed, and it has been said to be the uniform practice in one jurisdiction to file it in open court, in other jurisdictions it is held that this is not necessary, but that it may be filed in the clerk's office. The delivery of the information to the clerk is a 'filing' in law. In the absence of a mandatory statute the validity of the filing of an information or of proceedings thereon is not affected by failure to enter the filing on the order book or on the minutes or docket of the court; a proper minute or indorsement on the information itself is sufficient, the information, with the indorsements thereon, being a part of the record.'

Prior to the adoption of the statute, an information could not be filed in vacation, and a warrant issued on an information filed in vacation was invalid. Sims v. State, 26 Fla. 97, 7 So. 374, 376. And in the same case it was remarked that the 'uniform practice under it [the statute referred to] has been to file the information in open court.' See, also, in this connection, King v. State, 17 Fla. 183.

It was evidently the purpose of section 8258, Comp. Gen. Laws,...

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6 cases
  • Lowe v. State
    • United States
    • Florida Supreme Court
    • July 25, 1944
    ... ... committed within the two year period prescribed ... [19 So.2d 108] ... by statute. See Gomez v. Spencer, 113 Fla. 220, 151 ... So. 395. The presentation of an indictment or the filing of ... an information sufficiently commences a ... ...
  • Spencer v. Gomez
    • United States
    • Florida Supreme Court
    • May 5, 1934
    ...the same as those in the petition in the case of Gomez v. Spencer, decided by this court on December 8, 1933, and reported in 151 So. 395, there one material difference in the two cases. In the former case, the circumstances attending the purported filing of the information were alleged in ......
  • Bedami v. State
    • United States
    • Florida District Court of Appeals
    • April 29, 1959
    ...all necessary process, within a reasonable time. This was the conclusion reached in our recent case of Gomez v. Spencer. See 113 Fla. 220, 151 So. 395, at page 397, citing King v. State, 17 Fla. 183; Sims v. State, 26 Fla. 97, 7 So. 374, 376; 31 C.J. * * * * * * '* * * But it is just as ess......
  • State Ex Rel. Supreme Forest Woodmen Circle v. Snow
    • United States
    • Florida Supreme Court
    • December 11, 1933
  • Request a trial to view additional results

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