Mobley v. State
| Decision Date | 27 June 1962 |
| Docket Number | No. 31601,31601 |
| Citation | 143 So.2d 821 |
| Parties | Bennie Wesley MOBLEY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Hal S. Ives of Ives & Davis, West Palm Beach, for petitioner.
Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for respondent.
This case is before us on petition for writ of certiorari alleging that the decision rendered by the District Court of Appeal, Second District, 1 is in direct conflict with the decision of this Court in the case of Stephens v. Anderson. 2
The petitioner was charged by information in the court of record of Broward County with having in his possession the carcass of an alligator 'contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Florida.' In substance, however, it seems the petitioner was charged and tried upon an asserted violation of a rule of the Game and Fresh Water Fish Commission prohibiting such possession. At the conclusion of the State's case the petitioner moved for a directed verdict on the ground that the State had failed to offer in evidence the rule which was alleged to have been violated. The motion was denied. The petitioner appealed to the circuit court which reversed the judgment of the court of record. Thereafter the State, respondent here, petitioned for certiorari in the District Court of Appeal, which reversed the judgment of the circuit court.
The stipulation filed in the cause shows that the rule in question was not offered in evidence; that the court took judicial notice of the rule, a copy of which was in the judge's possession. The record does not disclose the text of the rule.
The sole issue turns upon the petitioner's contention that it was necessary that the rule in question be made a part of the record. The constitutional power of the Game and Fresh Water Fish Commission 3 to promulgate rules and regulations was implemented by statute, 4 which provides in essential part as follows:
The petitioner concedes that such rules, without further authentication, may be received in evidence and that when so offered the court may take judicial notice thereof but he questions the authority of the trial court to take judicial notice of a rule which has not been offered in evidence.
In the Stephens case, supra, it was urged that the court was obligated to take judicial notice of the ordinance in controversy under a statute 5 which provided as follows:
The District Court distinguished the Stephens case on the ground that it involved a municipal ordinance rather than a regulation of an administrative board. We find, however, when the similarity of the facts and pertinent statutes are considered, the distinction to be superficial, the two cases in direct conflict and jurisdiction in this Court.
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Poirier v. Division of Health, State Dept. of Health and Rehabilitative Services, BB-252
...relies upon State v. Mobley, 133 So.2d 334 (Fla.2nd DCA 1961). However, the Supreme Court, in reversing that decision (see Mobley v. State, 143 So.2d 821 (Fla.1962)), "We think it essential to the orderly dispensation of justice that a defendant be apprised, under the rules of procedure, of......
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Thorn v. Florida Real Estate Commission, 3294
...think it essential that the record contain some proof of the fact that Gaisford was not registered with the Commission. See Mobley v. State, Fla.1962, 143 So.2d 821. Writ of Certiorari is granted, and the order of the Commission is SHANNON, C. J., and WHITE, J., concur. ...