Holland v. State
| Decision Date | 22 March 1922 |
| Citation | 91 So. 379,83 Fla. 400 |
| Parties | HOLLAND v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Santa Rosa County; A. G. Campbell, Judge.
John Holland was convicted for a felony, and he brings error.
Reversed.
Syllabus by the Court
On change of venue from criminal court of record to a circuit court, held that trial for felony must be on indictment. Declaration of Rights, § 10, provides that 'No person shall be tried for a capital crime or other felony, unless on presentment or indictment by a grand jury, except as is otherwise provided in this Constitution.' The only exception other than impeachments and military trials contained in Const. art. 5, § 28, is that a criminal court of record shall have jurisdiction of all criminal cases not capital which shall arise in the counties respectively, and that 'all offenses triable in said court shall be prosecuted upon information under oath, to be filed by the prosecuting attorney.' The statute (Rev. Gen. St. 1920, § 6107) provides for a change of venue from a criminal court of record to the 'circuit court of some adjoining county,' and also (section 6058) provides that 'no person shall be tried for felony in the circuit court except upon indictment found by the grand jury.' Held, that the statute authorizing a change of venue does not modify the statutory provision expressly forbidding a trial in the circuit court for felony, 'except upon indictment found by the grand jury,' and that, under the quoted statute enacted pursuant to the Constitution, when a change of venue is had from a court of record to a circuit court the trial in the circuit court must be upon indictment.
John P. Stokes, of Pensacola, and W. W. Clark, of Milton, for plaintiff in error.
Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
An information charging a felony was filed against Holland in the court of record for Escambia county. The court transferred the case to the circuit court in the adjoining county of Santa Rosa. The accused was tried in the circuit court upon the information, and took writ of error to a judgment of conviction of the felony charged.
As to criminal cases, the court of record for Escambia county has the same jurisdiction that a criminal court of record in any other county has under the Constitution. See sections 24, 25, 39, 40, and 41, art. 5.
Section 6107, Revised General Statutes of 1920, provides that:
Section 6058, Revised General Statutes of 1920, provides that:
This latter statute conforms to the Constitution. See section 10, Declaration of Rights, and section 28, art. 5, Const.
Section 10, Declaration of Rights of the State Constitution, provides that----
'No person shall be tried for a capital crime or other felony, unless on presentment or indictment by a grand jury, except as is otherwise provided in this Constitution.'
The only exception in felony cases provided for in the Constitution, other than impeachment and military trials, is that all offenses triable in the criminal courts of record 'shall be prosecuted * * * under oath, to be filed by the prosecuting attorney'; such courts having jurisdiction of all criminal cases not capital which shall arise in the counties respectively. Sections 25 and 28, art. 5.
As the quoted provision of section 10, Declaration of Rights, is an organic command, and not merely a declaration of a constitutional right that may be waived by the party having the right, neither the Legislature nor the courts can modify the organic command.
It does not appear that, because a charge of felony is triable in the court of record on an information, it may also be tried in a circuit court on an information in view of the Constitution and of the specific requirement of the statute.
Section 6058, Revised General Statutes 1920, expressly provides that----
'No person shall be tried for felony in the circuit court except upon indictment found by the grand jury.'
Section 6107 authorizes a change of venue from a criminal court of record to the 'circuit court of some adjoining county'; but this does not impliedly modify the express provision of section 6058 that mandatorily requires a trial for felony in the circuit court to be only upon indictment found by the grand jury.
The defendant may be indicted in the circuit court for Escambia county under section 28, art 5, of the Constitution, and the indictment may be transmitted to the court of record, and by it sent to the circuit court for Santa Rosa county under the order for a change of venue.
As the trial on the felony charge was had in the circuit court upon an information, and not upon an indictment, the commands of the Constitution and section 6058, Revised General Statutes, were violated.
Reversed.
Section 10 of the Declaration of Rights of the Constitution forbids the trial of any person for a capital crime or other felony unless upon indictment by a grand jury, except as is otherwise provided in the Constitution. The exception otherwise provided in the Constitution is contained in sections 25 and 28 of article 5, conferring jurisdiction upon criminal courts of record of all criminal cases not capital, and making them triable upon 'information under oath, to be filed by the prosecuting attorney.'
By section 25 criminal courts of record are given jurisdiction in all criminal cases not capital which shall arise in such counties; that is to say, in cases arising in counties in which such courts are established. By section 28 all offenses triable in said courts shall be prosecuted on information under oath.
Now the offense with which the accused in this case is charged did arise in Escambia county, and he was informed against in the criminal court of record of that county. The offense was triable in the criminal court of record, and therefore it was properly prosecuted upon information. Being an offense triable upon information, it is within the exception named in section 10 of the Declaration of Rights.
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Deeb v. State
... ... committed in that county, and there was a criminal court of ... record in Escambia county having jurisdiction of noncapital ... felonies. There is now ... [179 So. 898] ... a court of record in Escambia county having jurisdiction of ... all noncapital felonies. See Holland v. State, 83 ... Fla. 400, 91 So. 379 ... Except ... by forbidding the passage of special or local laws ... 'providing for change of venue in civil or criminal ... cases,' the Constitution of Florida does not provide for ... or regulate [131 Fla. 371] proceedings for a change of ... ...
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Champlin v. Cochran
...unsworn information could not possibly sustain a conviction. To support his claim the petitioner relies on a statement in Holland v. State, 83 Fla. 400, 91 So. 379. This Court did make reference to Section 10 of the Declaration of Rights as it read prior to its amendment in 1934. The opinio......
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