Nellen v. State

• Decision Date: 11 September 1969
• Docket Number: No. M--43,M--43
• Parties: Jacquelyn L. NELLEN, Carolyn J. Austin, Victoria L. Fulton, Penelope J. Griesinger, and Albert W. Teebagy, Petitioners, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 354

226 So.2d 354

Jacquelyn L. NELLEN, Carolyn J. Austin, Victoria L. Fulton, Penelope J. Griesinger, and Albert W. Teebagy, Petitioners, v. STATE of Florida, Respondent.

No. M--43.

District Court of Appeal of Florida, First District.

Sept. 11, 1969.

Maurice Wagner, Holly Hill, for petitioners.

Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.

ON MOTION TO DISMISS

WIGGINTON, Judge.

Petitioners have filed in this court their petition seeking a common law writ of certiorari to review an order by Honorable J. Robert Durden, County Judge of Volusia County, rendered in his capacity as a committing magistrate of that county.

Petitioners were arrested in Volusia County on a warrant charging them with the unlawful possession of marijuana and barbiturates. A preliminary hearing was held by the respondent, County Judge J. Robert Durden, in his capacity as a committing magistrate of Volusia County. At the conclusion of the hearing respondent rendered an order finding that the offenses with which petitioners are charged appear to have been committed, and there is probable cause to believe that the defendants were guilty thereof. Based upon this finding the court ordered that petitioners be bound over to the Felony Court of Record of Volusia County, Florida, for trial.

Some seven days after rendition of the foregoing order petitioners filed a pleading entitled 'Motion to Vacate Order Re Hearing and Disqualification of Judge for Prejudice.' This pleading was supported by affidavits purporting to show that respondent County Judge was prejudiced against counsel representing petitioners to such an extent that they were deprived of a fair and impartial preliminary hearing. The motion prayed that the order finding probable cause and binding them over to the Felony Court of Record for trial be vacated and set aside, and that the Judge enter an order disqualifying himself in any further proceedings of the cause. After a hearing held before the court on petitioners' motion, an order was rendered finding that the motion for rehearing and disqualification was filed more than four days after rendition of the order finding probable cause and binding petitioners over for trial. Upon such finding the court struck the motion of petitioners. It is this order which petitioners seek to have reviewed and quashed in this proceeding.

The case is now before the court on the motion of the Attorney General representing the respondent County Judge and the State of Florida, seeking dismissal of the petition on the ground that this court lacks jurisdiction to review by certiorari an order rendered by a county judge sitting in the capacity of a committing magistrate in a criminal proceeding.

It is generally recognized that common law certiorari is in the nature of an appellate process which provides a method of obtaining review of an inferior court's order or judgment, as contrasted to a collateral assault on such judicial act. ¹ The superior court, in issuing its writ of certiorari, is acting in the exercise of its supervisory jurisdiction over the inferior court with respect to whose orders and judgments it has the ultimate right of appellate review. As said by Ferris in his treatise on the subject of 'Certiorari':

'While certiorari is used in the exercise of a superior court's supervisory jurisdiction, it is not to be confounded with its appellate jurisdiction, and the court is restricted, on certiorari, to examination into the external validity of the proceedings had in the lower court; it cannot inquire into the extrinsic correctness of the judgment, as on appeal, except to ascertain that the judgment is invalid because the essential forms of the law have not been observed, or that the court had no jurisdiction. * * *' ²

The author of American Jurisprudence, in his discussion of the nature and office of the writ of certiorari, has said:

'The judgment of the court in certiorari affects only the validity of the record. That is, its judgment determines whether the record is valid or invalid. Moreover, on a certiorari, in the absence of statutory enlargement, only the external validity of the proceedings had in the lower court may be examined by the superior court under its supervisory jurisdiction; the supervisory jurisdiction of the court cannot be exercised in order to review the judgment as to its intrinsic correctness, either on the law or the facts of the case.' ³

From the foregoing we conclude and so hold that the common law writ of certiorari is issuable only by those courts which are vested by law with supervisory appellate jurisdiction over the decisions of the court whose order is challenged and for which certiorari review is sought.

The order sought to be reviewed in...