King v. State, No. 31623

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; ROBERTS, C. J., and TERRELL; DREW; THORNAL; DREW; ROBERTS, C. J., and TERRELL; THORNAL
Citation143 So.2d 458
PartiesHarry E. KING, Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. 31623
Decision Date11 July 1962

Page 458

143 So.2d 458
Harry E. KING, Petitioner,
v.
STATE of Florida, Respondent.
No. 31623.
Supreme Court of Florida.
July 11, 1962.

L. Grady Burton, Wauchula, and Chester Bedell, Jacksonville, for petitioner.

Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for respondent.

PER CURIAM.

The historical background is set forth in the case of Gordon v. State, Fla., 104 So.2d 524 and King v. State, Fla.App., 134 So.2d 502. This court has jurisdiction to review the matter; compare Alkire's Estate, 144 Fla. 606, 198 So. 475; Way v. State, Fla., 67 So.2d 321; Diecidue v. State, Fla., 131 So.2d 7; and Trafficante v. State, Fla., 92 So.2d 811. A careful examination of the record demonstrates that the Circuit Court, acting as an appellate court, departed from essential requirements of the law in affirming King's conviction on the sole ground that the District Court's opinion in the Gordon case settled all of the points raised on the appeal and the questions involved therein. Further, it appears that the trial court inadvertently failed to observe the rule of

Page 459

the decision announced by this court in the Way, Diecidue and Trafficante cases, supra, applying F.S. 918.09, F.S.A., prohibiting a prosecuting attorney from commenting on the failure of an accused to testify on his own behalf.

Accordingly, certiorari is granted, the opinion of the District Court is quashed with directions to vacate and set aside the decision of the Circuit Court and to remand the case to that court with directions to decide the appeal on the merits in accordance with our prior decisions.

It is so ordered.

ROBERTS, C. J., and TERRELL, J., concur.

DREW, J., concurs with opinion.

HOBSON, (Ret.), J., concurs specially with opinion.

THOMAS and O'CONNELL, JJ., dissent.

THORNAL, J., dissents with opinion.

DREW, Justice (concurring).

It is my view that the Circuit Court acting as an appellate court departed from the essential requirements of the law in affirming King's conviction on the sole ground that the District Court's opinion in the Gordon case settled all of the points raised on the appeal and the questions of law involved therein. King was entitled under the Constitution and laws of this State to have his appeal disposed of on the merits by the Circuit Judge. The District Court's opinion denying certiorari in these circumstances, I think, constitutes a direct conflict with the innumerable decisions of this Court holding that it is the duty of an appellate court 'to decide for itself both the probative force of evidence as shown by the record, and the law applicable thereto, and to render the judgment or decree which in law should be rendered.' In re Alkire's Estate, 1940, 144 Fla. 606, 198 So. 475, and many other cases. I would, therefore, grant certiorari, quash the District Court's opinion with directions to vacate and set aside the decision of the Circuit Court and remand the case to that court with directions to decide the appeal on the merits in accordance with our prior decisions.

HOBSON, (Ret.), Justice (concurring specially).

This case is before us on a petition for a writ of certiorari to the District Court of Appeal, Second District. The petitioner asserts that the decision of the District Court is in direct conflict with a number of prior decisions of this court on several different points of law.

It is unnecessary for the purposes of this opinion to enucleate in detail the factual background of this case which was discussed at some length in a former opinion. Gordon v. State, Fla.1958, 104 So.2d 524.

A brief history of the events leading up to this petition for a writ of certiorari is, however, necessary to an understanding of the extant issues. In May, 1956, the petitioner, King, was convicted, along with four other defendants, in a joint trial in the Criminal Court of Record of Polk County, on two counts of an information charging conspiracy to commit perjury and on two counts charging subornation of perjury. Petitioner and the defendants Gordon, Busbee and Arnold, appealed their felony convictions (subornation of perjury) to this court, which reversed and ordered a new trimal. Gordon v. State, Fla.1958, 104 So.2d 524. Thereafter, petitioner's misdemeanor convictions (conspiracy to commit perjury) were reversed by the Circuit Court for Polk County.

In January, 1959, petitioner was retried separately on both the charges of subornation of perjury and conspiracy to commit perjury. The jury returned verdicts of not

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guilty as to the subornation charges but convicted petitioner of Counts 1 and 2, charging conspiracy to commit perjury. Petitioner appealed his conviction of the charges to the Circuit Court for Polk County.

In the meantime, at a separate trial, the defendant Gordon had been convicted on charges of subornation of perjury and had appealed to the District Court of Appeal, Second District. In May, 1960, the District Court of Appeal affirmed Gordon's conviction. Gordon v. State, Fla.App., 119 So.2d 753.

The Circuit Court, in determining the merits of petitioner's appeal, relied on the decision of the District Court of Appeal in the Gordon case, and entered the following order:

'ORDER

'This is an appeal from the Criminal Court of Record, in and for Polk County, Florida, wherein conviction and judgment was entered against defendant, Harry E. King, for the offense of unlawful conspiracy to commit the offense of perjury. This is an outgrowth of a case which involved H. P. Gordon, Harry E. King, James L. Busbee, Rollie Arnold and Sentell Monk, at the first trial all of the defendants were convicted and upon appeal to the Supreme Court the cause was reversed and a new trial ordered; thereafter the Judge of the Criminal Court of Record granted the defendant King's Motion to Sever; Arnold and Busbee entered pleas of guilty. King and Gordon were tried separately. Gordon was convicted of the offenses of unlawful conspiracy to commit the offense of perjury and subrogation [sic] of perjury and King was convicted of the offense of unlawfully conspiring to commit the offense of perjury jury on two counts. Gordon's conviction was appealed to the District Court of Appeal of Florida, Second District, which was affirmed, and upon Petition of Certiorari to the Supreme Court of Florida, the decision of the District Court of Appeal of Florida, Second District, was sustained.

'King's conviction being of a lesser offense placed the appeal of his case in the Circuit Court and the undersigned was assigned by the Chief Justice of the Supreme Court of Florida to hear and determine said appeal. The facts of the two cases are based upon identical acts and circumstances surrounding the commission of the offenses and the same principles of law apply and control each trial. The able opinion of the District Court of Appeal of Florida, Second District, in the case of H. P. Gordon v. State of Florida, 119 So.2d 753, settles the questions of law and is determinative of this case adverse to the appellant; and the Court being fully advised in the premises, it is upon consideration thereof

'ORDERED, ADJUDGED AND DECREED that the judgment of the Criminal Court of Record, in and for Polk County, Florida, entered in this cause be and is hereby affirmed.' (Italics supplied.)

Thereafter, a writ of certiorari was sought from the District Court of Appeal, Second District, to review the affirmance of petitioner's conviction by the Circuit Court. King v. State, Fla.App.1961, 134 So.2d 502. The District Court rendered an opinion denying the petition for a writ of certiorari. It is this decision that we are called upon to review by certiorari.

Our jurisdiction in this cause hinges upon a determination of the twofold query: First, whether it appears from the 'record proper' 1 that the Circuit Judge committed

Page 461

fundamental error, in the light of the organic law, in failing to give to Petitioner a review of his appeal upon the merits of his own case and thus rendered a decision (affirmed by the District Court) which conflicts with innumerable decisions of this Court consistently upholding Section 12, Declaration of Rights, F.S.A., and Article V, Section 6(3) of the Florida Constitution, F.S.A.; second, whether the decision of the Circuit Court and that of the District Court of Appeal are in direct conflict on the same point of law with the decisions of this Court in the cases of Diecidue v. State, Fla.1961, 131 So.2d 7; Gordon v. State, Fla.1958, 104 So.2d 524; Trafficante v. State, Fla.1957, 92 So.2d 811; Way v. State, Fla.1953, 67 So.2d 321; Simmons v. State, 139 Fla. 645, 190 So. 756; and Rowe v. State, 87 Fla. 17, 98 So. 613.

Because of my conclusion that the first prong of this bipartite question should be answered in the affirmative I will discuss the second primarily in connection with the merits of this case. However the answer to the latter branch of our dual proposition likewise constitutes an 'open-sesame' to this Court's jurisdiction.

It has been brought to our attention that the opinion of the District Court in denying certiorari in this cause does not undertake to discuss these crucial points, but only states: 'We * * * have carefully considered each and every point set out by the petitioner but fail to find that the judgment here sought to be reviewed by certiorari is not in accordance with the essential requirements of law and hence the petition for writ of certiorari is denied.

The respondent contends that this fact prevents this Court from predicating its jurisdiction on an asserted conflict which is not apparent from the face of the District Court's opinion. Regardless of the language which may be contained in prior opinions of this Court which might have been construed by members of the bench and bar as tending to support this argument, I would reject the notion that the opinion of a District Court must undertake to discuss specifically the point in issue before a direct...

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10 practice notes
  • State v. Hodges, No. 62-765
    • United States
    • Court of Appeal of Florida (US)
    • 29 September 1964
    ...have been held proscribed. Fla.Stat. § 918.09, F.S.A.; Gordon v. State, Fla.1958, 104 So.2d 524, 539-541. See King v. State, Fla.1962, 143 So.2d 458, 464 (concurring See People v. Afarian (1951), 202 Misc. 199, 108 N.Y.S.2d 533, wherein it was held reversible error to call attention to the ......
  • Crawford v. State, No. 83-1322
    • United States
    • Court of Appeal of Florida (US)
    • 27 March 1985
    ...811 (Fla.1957); Kolsky v. State, 182 So.2d 305 (Fla. 2d DCA 1966); Milton v. State, 127 So.2d 460 (Fla. 2d DCA 1961); cf. King v. State, 143 So.2d 458, 464-466 (Fla.1962) (Hobson, J., Id. at 944. In Rowell v. State, 450 So.2d 1226 (Fla. 5th DCA 1984), the Fifth District Court analyzed State......
  • State v. Jones, No. 36440
    • United States
    • United States State Supreme Court of Florida
    • 22 November 1967
    ...129 Fla. 860, 176 So. 862; Ard v. State, Fla.1959, 108 So.2d 39; Diecidue v. State, Fla.1961, 131 So.2d 7; and King v. State, Fla.1962, 143 So.2d 458. If one desires to pursue the subject further many cases will be found in an exhaustive annotation under the title 'Comment or Argument by Co......
  • Williams v. State, No. 1136
    • United States
    • Court of Appeal of Florida (US)
    • 16 June 1967
    ...§ 918.09 prohibiting comment by the prosecuting attorney to the jury for failure of the defendant to testify. King v. State, Fla.1962, 143 So.2d 458; Diecidue v. State, Fla.1961, 131 So.2d 7; Gordon v. State, Fla.1958, 104 So.2d 524; Trafficante v. State, Fla.1957, 92 So.2d 811; Way v. Stat......
  • Request a trial to view additional results
10 cases
  • State v. Hodges, No. 62-765
    • United States
    • Court of Appeal of Florida (US)
    • 29 September 1964
    ...have been held proscribed. Fla.Stat. § 918.09, F.S.A.; Gordon v. State, Fla.1958, 104 So.2d 524, 539-541. See King v. State, Fla.1962, 143 So.2d 458, 464 (concurring See People v. Afarian (1951), 202 Misc. 199, 108 N.Y.S.2d 533, wherein it was held reversible error to call attention to the ......
  • Crawford v. State, No. 83-1322
    • United States
    • Court of Appeal of Florida (US)
    • 27 March 1985
    ...811 (Fla.1957); Kolsky v. State, 182 So.2d 305 (Fla. 2d DCA 1966); Milton v. State, 127 So.2d 460 (Fla. 2d DCA 1961); cf. King v. State, 143 So.2d 458, 464-466 (Fla.1962) (Hobson, J., Id. at 944. In Rowell v. State, 450 So.2d 1226 (Fla. 5th DCA 1984), the Fifth District Court analyzed State......
  • State v. Jones, No. 36440
    • United States
    • United States State Supreme Court of Florida
    • 22 November 1967
    ...129 Fla. 860, 176 So. 862; Ard v. State, Fla.1959, 108 So.2d 39; Diecidue v. State, Fla.1961, 131 So.2d 7; and King v. State, Fla.1962, 143 So.2d 458. If one desires to pursue the subject further many cases will be found in an exhaustive annotation under the title 'Comment or Argument by Co......
  • Williams v. State, No. 1136
    • United States
    • Court of Appeal of Florida (US)
    • 16 June 1967
    ...§ 918.09 prohibiting comment by the prosecuting attorney to the jury for failure of the defendant to testify. King v. State, Fla.1962, 143 So.2d 458; Diecidue v. State, Fla.1961, 131 So.2d 7; Gordon v. State, Fla.1958, 104 So.2d 524; Trafficante v. State, Fla.1957, 92 So.2d 811; Way v. Stat......
  • Request a trial to view additional results

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