Lovett v. State

• Citation: 29 Fla. 384,11 So. 176
• Parties: LOVETT v. STATE.
• Decision Date: 09 June 1892
• Court: United States State Supreme Court of Florida

11 So. 176

29 Fla. 384

LOVETT v. STATE.

Florida Supreme Court

June 9, 1892

Error to circuit court, Duval county; W. B. YOUNG, Judge.

Prosecution against Dave Lovett for murder. On a judgment of conviction defendant brought error, and the judgment was reversed, and a remittitur filed in the lower court. On motion to vacate the judgment of reversal and for a writ of certiorari to have the record properly certified. Motion granted.

Syllabus by the Court

SYLLABUS

1. The supreme court entered judgment on writ of error, reversing a judgment of the circuit court in a capital case, and issued its remittitur, which was filed in the latter court. Subsequently, during the same term of the supreme court, it was shown that the transcript upon which it had acted was, on account of a mistake in making such transcript, an entire misrepresentation of the real record of the circuit court as to the point upon which the judgment of reversal was based and a motion was made in behalf of the state by the attorney general, who had relied on the transcript as truthful, and had not participated in the trial in the circuit court, to vacate the entry of the judgment of reversal, and restore the case to the docket of the supreme court. Held, that the supreme court had not lost jurisdiction of the cause, and its entry of judgment should be vacated, and the cause recalled and restored to its docket.

2. The counsel of an appellant party is charged with the duty of bringing to the appellate court a correct transcript of the record of the inferior court, and no advantage can be gained from any action of the former court upon a false transcript however ignorant the appellant party or his counsel may be of the real status of the record of the lower court, or of the incorrectness of the transcript, or however free from blame the clerk may have been as to the mistakes in the transcript.

COUNSEL W. B. Lamar, Atty. Gen., for the motion.

OPINION

RANEY, C.J.

Upon the filing of the former opinion in this cause judgment was entered reversing the judgment of the circuit court of Duval county, and remanding the case for a new trial, (11 South Rep. 172;) and our mandate issued, directed to the judge of that court, requiring that such further proceedings be had in the cause as, according to right and justice, the judgment of this court, and the laws of the state, ought to be had, and this mandate was filed in the office of the clerk of the circuit court on the 18th day of April. On the 31st day of April the attorney general moved for a vacation of our judgment, and for a rehearing of the cause, for the reason that what purports to be a transcript of the record of the circuit court on file in this court, and on which we have acted in rendering the preceding decision, is not a true and correct transcript of such record, and that the alleged defects of record upon which the judgment of conviction was reversed by us do not exist, but that the contrary is true; and suggesting a diminution of the record, and moving for a certiorari for a return of the entries showing the presence of the accused at the time of the trial, and his arraignment and plea of not guilty. In support of the motion the attorney general presented and filed a duly-certified transcript from the record of the circuit court of Duval county, under the hand and seal of the clerk of that court, which, after showing the presentment of the indictment for murder in the first degree against Lovett in open court, on the 20th day of November, 1891, at the fall term, exhibits also the following entries, or the date indicated, at the same term:

'November 23, 1891. State of Florida vs. Dave Lovett. Arraignment. Plea of not guilty. Comes T. A. MacDonell, who prosecutes for the state of Florida, and the defendant, Dave Lovett, in his own proper person, and, being solemnly arraigned, pleaded not guilty to the indictment, whereupon he was remanded to the custody of the sheriff to await the further action of the court. * * *'

'December 10, 1891. State of Florida vs. Dave Lovett. Comes now T. A. MacDonell, who prosecutes for the state of Florida, and the defendant being present at the bar, attended by his counsel, [then follow, in the same entry, two orders,--one for a special venire for twelve jurors, the regular venire having been exhausted; and, after a recital that the special venire was exhausted, another for a venire for ten jurors.]' The entry concludes as follows: 'The three jurors necessary to complete the panel for the trial of this cause having been accepted, the following named jurors [their names being stated, and there being twelve of them] were accepted and duly sworn according to law for the trial of this cause. And the evidence having been submitted to the jury aforesaid, and having heard the argument of counsel and charge of the court, and returning into court in due form of law, upon their oaths do say: 'We, the jury, find the prisoner guilty as charged in the indictment. J. C. ANDREU, Foreman.' It is thereupon considered by the court that the defendant be remanded to the custody of the sheriff, to await the further action of the court.'

Then follows the entry of sentence on December 14th, in the form shown by the statement preceding the former opinion.

Upon the presentation of the motion we recalled our mandate, and caused notice of the hearing of the motion to be given to the accused, and to the attorney who represented him both in the circuit court and in this court. This attorney, disclaiming any representation of the accused, as his attorney in this proceeding, has volunteered to file, as amicus curiae, a statement, with authorities, upon the motion, which authorities are reviewed, with others, in the subsequent pages of this opinion.

It is apparent that the state's motion is made during the term of court at which the judgment which it is sought to have revoked was pronounced and entered, and it is a general rule of the common law that courts have power to either modify or vacate their judgments and decrees during the term at which they were rendered, or while they are in fieri. Freem. Judgm. (4th Ed.)§ 90; Bronson v. Schulten, 104 U.S. 410. If our mandate had not reached the circuit court before the motion was made, and we had recalled it before it was filed with or received by the clerk, the question before us would be of easier solution. Burkle v. Luce, 1 N. Y. 239; Hosack v. Rogers, 7 Paige, 108; Grogan v. Ruckle, 1 Cal. 193. Still, in our judgment, the consummation of the issue to the mandate, by its receipt by the court whose judgment has been under review, is not, under the circumstances of this case, a termination of our jurisdiction. It is true we find in some adjudications a statement, in general terms, that this juncture concludes the jurisdiction of the appellate court. In Martin v. Wilson, 1 N. Y. 240, a motion was made in the court of appeals to open a judgment of affirmance taken by default at a former term, and 'the court held that it lost its jurisdiction of the cause when theremittitur was filed in the court below, and on that ground denied the motion;' and in Grogan v. Ruckle, supra, the doctrine announced was that the court may, after its judgment has been pronounced, direct a rehearing at any time before the remittitur has been sent to and filed in the clerk's office of the lower court, but after that has been done the jurisdiction of the appellate court to order a rehearing ceases; but the real fact in the case was that theremittitur was improperly sent down after the entry, at the same term, of the order for a rehearing, and it was held that so doing did not deprive the court of its jurisdiction. Again, in Leese v. Clark, 20 Cal. 387, it is said that the supreme court has no appellate jurisdiction over its own judgments, and cannot review or modify them after the case has once passed, by the issuance of the remittitur, from its control, nor recall the cause and reverse its decision; but the court was speaking of the binding effect of a former decision in the same cause. Martin v. Hunter's Lessee, 1 Wheat. 355. The same doctrine was enunciated in Blanc v. Bowman, 22 Cal. 23, where a motion was made to set aside and order, made at the same term, affirming a judgment; the ground of the motion being that one of the judges who participated in the decision had not heard the oral argument of the cause. In the decision of this motion the court, after alluding to the reason of the rule of court providing that remittitur shall not issue for 10 days after judgment, as being to allow time for applications for rehearings or to modify or set aside the judgment, observes: 'No excuse is shown why this application was not made within the 10 days allowed by the rules of this court, or before the court had lost control of the cause by filing the remittitur in the court below.'

The facts of the preceding cases had not called for, it would seem, even an investigation as to the power of the court to recall the cause, under any circumstances, after the mandate has been filed in the lower court.

In Rowland v. Kreyenhagen, 24 Cal. 52 appeals in two cases were dismissed, at the October term, 1863, on motion of appellee, because transcripts had not been filed. The rules of court provided that, if the appeal transcript was not filed within the time prescribed, the appeal might be dismissed ex parte during the first week of the term, and that such dismissal should be final, and a bar to any other appeal in the same case, unless the appeal should be restored during the same term upon good cause shown and upon notice. An order made as the court was about to adjourn in October, provided that all motions to reinstate causes dismissed under the rules referred to might be made on...