Harrington v. State, A-336

• Decision Date: 17 March 1959
• Docket Number: No. A-336,A-336
• Citation: 110 So.2d 495
• Parties: Roosevelt HARRINGTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 495

110 So.2d 495

Roosevelt HARRINGTON, Appellant, v.STATE of Florida, Appellee.

No. A-336.

District Court of Appeal of Florida, First District.

March 17, 1959.

Rehearing Denied April 10, 1959.

T. J. Jennings, Jr., Green Cove Springs, for appellant.

Richard W. Ervin, Atty. Gen., David U. Tumin, Asst. Atty. Gen., and Eugene P. Spellman, Asst. Atty. Gen., for appellee.

ORVIL L. DAYTON, Associate Judge.

Appellant, defendant below, appeals from a conviction on the first count of an information charging him with having aided and assisted in the setting up, promotion and conduct of a lottery.

The court denied defendant's pre-trial motion seeking to quash a search warrant pursuant to which certain property used in lotteries was seized from him as an incident to his arrest, suppress the evidence obtained thereunder, and to have returned to him the property confiscated from him under such search warrant.The motion was based on the ground that the affidavit upon which the warrant issued did not show probable cause as required by Section 22, Declaration of Rights, Constitution of Florida, F.S.A.The property seized pursuant to the warrant was admitted in evidence at the trial over defendant's objections.

The subject property was seized from a taxicab operated by defendant.The affidavit upon which the search warrant issued was made by the sheriff of Putnam County on September 7, 1957.It properly described the thing to be searched as an automobile owned and operated by appellant as a taxicab in Palatka, Florida, and recited that he had reason to believe and did believe that such automobile was being used in connection with gambling.As reason for such belief affiant stated that on September 5, 1957, a confidential informer well known to affiant advised affiant that he, the informer, had personally been on certain premises in Palatka, Florida, on repeated occasions on Saturday evenings, and advised affiant that in his presence and sight lottery and bolita tickets and the money therefor had been deposited in a brown paper sack and the said sack thereupon been given to the said Roosevelt Harrington who promptly took it to the described automobile and placed it therein and thereupon drove off.Affiant further stated that the confidential informer advised affiant that such actions had occurred on the night of Saturday, August 31, 1957, and each Saturday theretofore for a long period of time; and affiant further stated that he had personally seen the subject taxicab being driven from Palarka to Green Cove Springs at a late hour on a number of 'recent Saturday nights.'

Appellee contends that appellant's assignments of error do not comply with Rule 3.5, subd. c, Florida Appellate Rules, 31 F.S.A., in that the grounds relied on are not detailed.One ground of error recites: '1.The Court erred in and by overruling and denying a motion for new trial.'That motion contains eight grounds.While the proper practice is to detail the grounds to be argued and relied upon here, we find the motion for new trial in the record on appeal, and in the interest of justice will consider the points argued on appeal that are fairly raised by the motion.In doing so we take note that a restatement of those grounds as assignments of error would have satisfied the rule.

The only material questions raised by the appellant are: first, whether the search warrant was supported by an affidavit showing probable cause; second, whether the sheriff, upon whose affidavit the warrant issued, was required to...