Lee v. State

• Decision Date: 21 May 1937
• Citation: 174 So. 589,128 Fla. 319
• Parties: LEE v. State [*]
• Court: Florida Supreme Court

174 So. 589

128 Fla. 319

LEE v. State ^[*]

Florida Supreme Court, Division B.

May 21, 1937

Error to Circuit Court, Sumter County; J. C. B. Koonce, Judge.

Jim Lee was convicted of murder. On motion by the defendant to vacate an order dismissing his writ of error.

Motion denied.

COUNSEL

Martin & Martin, of Plant City, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BROWN, Justice.

This case is before us on motion to vacate an order recently entered by this court dismissing the writ of error, which writ was used out on December 9, 1936.

The Attorney General's motion for the dismissal of the writ of error was grounded upon the fact that the writ was not sued out within the time provided by chapter 16302, Acts of 1933.

The defendant was indicted in October, 1933, for murder in the first degree. The indictment charged that the offense was committed on May 25, 1933. The defendant was found guilty by the jury with recommendation to mercy of the court, and on April 20, 1934, the judgment of conviction was duly entered embracing a sentence to life imprisonment in the penitentiary. More than two years later, on December 9, 1936 the defendant filed his praecipe for writ of error and the same was issued. The writ so issued, was, as above stated recently dismissed by this court on the Attorney General's motion.

This motion to vacate the order of dismissal is based upon the contention that the time within which the defendant was entitled to sue out writ of error must be governed by the law as it existed at the time the offense was alleged to have been committed. The statute in force at that time, which was section 8436, C.G.L., placed no time limit upon the time within which a person convicted of a crime could sue out a writ of error. But within a few weeks after the crime was alleged to have been committed in this case, but before the judgment of conviction was rendered, the law on this subject was changed. Chapter 16302, which was approved June 12, 1933, provided as follows:

'Section 1. That hereafter no writ of error shall issue in any criminal case unless the same is sued out within six months from the date of the entry of the judgment therein.

'Section 2. No writ of error shall issue in any criminal case, in which a judgment has heretofore been entered, unless the same is sued out within six months after this Act shall take effect.

'Section 3. This Act shall take effect upon its becoming a law.'

So, this statute was in effect when the judgment of conviction was rendered in April of 1934. The right to sue out a writ of error did not accrue until then. The general rule is that the right of appeal is governed by the law applicable thereto in force when the final judgment is rendered. 3 Am.Jur. 145. It is also a general rule that the time commences to run when the final judgment is entered, unless a motion for new trial or rehearing, seasonably made before the entry of the judgment, has not been ruled upon when the judgment is entered. In such case the time is computed from the date of the denial of the motion for new trial. The reason for this rule is that the character of finality does not attach to the judgment or decree until the motion has been decided. 3 Am.Jur. 149; McClellan v. Wood, 78 Fla. 407, 83 So. 295. A motion for a new trial was made and denied in this case, but it is not contended that this in any way affected the finality of the judgment rendered, or the time element here involved. In behalf of plaintiff in error it is contended that section 32 of article 3 of our Constitution has a bearing upon the contention here made. That section reads:

'The repeal or amendment of any criminal statute shall not effect the prosecution or punishment of any crime committed before such repeal or amendment.'

But we are not dealing here with the matter of the prosecution or punishment of the crime alleged to have been committed, and for which the plaintiff in error was convicted. We are dealing with a question of procedure--a question relating to the time within which a person convicted of crime may seek appellate review of the judgment of conviction. The case of Ex parte Browne, 93 Fla. 332, 111 So. 518, cited by plaintiff in error, is therefore not in point. That case dealt with a statute changing the method of punishment in capital cases and came squarely within the quoted constitutional provision.

The case of Mathis v. State, 31 Fla. 291, 12 So. 681, 682, also cited in behalf of plaintiff in error, does not support his contention. That case dealt with a change in the number of peremptory challenges which could be exercised by an accused person, which change was brought about by the adoption of the Revised Statutes of 1892, which reduced the number of such challenges from twenty to ten. The eighth, ninth, and tenth headnotes in that case read as follows:

'8. The right to peremptorily challenge jurors appertains to the remedy or procedure under which...