Palmieri v. State
| Citation | 198 So.2d 633 |
| Decision Date | 03 May 1967 |
| Docket Number | No. 35880,35880 |
| Parties | Carmine Vincent PALMIERI, Petitioner, v. STATE of Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
Michael A. Lipsky and Matthews & Mandina, Miami, for petitioner.
Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for respondent.
The District Court of Appeal, Third District, affirmed a judgment of the trial court based on a jury verdict convicting petitioner Palmieri of robbery. The cause was certified to this court under Article V, Section 4(2), of the Constitution of Florida, F.S.A., in that the decision passed upon a question of great public interest because 'it concerns a determination of when the denial of a preliminary hearing in violation of § 901.23, Florida Statutes (F.S.A.), is prejudicial to a defendant.' On application of the petitioner a writ of certiorari was issued.
The defendant was arrested at his home about 1:30 in the morning without a warrant was not taken before a committing magistrate, but was incarcerated in the Dade County jail. The next day he was identified in a lineup at the jail by a prosecution witness. Ten days after the arrest and after he had filed a petition for writ of habeas corpus, the state filed an information charging him with robbery. The jury found him guilty and he was sentenced to twenty years in prison.
Appellant Palmieri presented two points to the district court which are under review here:
'(1) Whether the defendant's detention for ten days, upon an arrest without a warrant, and without his being taken before a magistrate, while incriminating evidence was gathered against him from repeated lineups, amounted to a denial of due process of law pursuant to the Florida Constitution, Section 12, Declaration of Rights, and the United States Constitution, Fourteenth Amendment.
'(2) Whether there was insufficient evidence to support the verdict.'
The district court determined in reference to point (1) that the evidence obtained at the lineup was admissible, and that therefore point (2) was without merit.
The cases petitioner relies on in seeking a reversal of the trial and district courts are: McNabb v. United States (1943), 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Watts v. State of Indiana (1949), 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; People v. Hamilton (1960), 359 Mich. 410, 102 N.W.2d 738; Vorhauer v. State (Del.1965), 212 A.2d 886. These decisions are not decisive of this case inasmuch as they involve admission of extra-judicial confessions and the due process clause of the Fourteenth Amemdment which makes the exclusionary rule mandatory In federal cases,
Petitioner contends that 'due process of law should be extended to include a right to a preliminary hearing in the State of Florida upon a charge of a felony' and contends that had he been so presented, the magistrate would have released him inasmuch as the evidence against him was procured at the jail Subsequent to his incarceration. He thus reasons that the failure to follow F.S. § 901.23, F.S.A. (the preliminary hearing statute) was prejudicial to him. The statute provides:
'An officer who has arrested a person without a warrant, shall without unnecessary delay take the person arrested before the nearest or most accessible magistrate in the county in which the arrest occurs, having jurisdiction, and shall make before the magistrate a complaint, which shall set forth the facts showing the offense for which the person was arrested; or, if that magistrate is absent or unable to act, before the nearest or most accessible magistrate in the same county.'
It is apparent that the defendant should have been taken before a magistrate without unnecessary delay under the statute. The attorney general has stated 'the statute should be complied with', Op.Atty.Gen.--048--73; the federal courts have ruled in the above cited McNabb case, and Mallory v. United States (1957), 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, that the failure to comply is a denial of Due process under federal law; and we have noted that the continued failure of officers to comply cannot be condoned, Milton v. Cochran (Fla.1962), 147 So.2d 137. However, under this statute a preliminary hearing is for the purpose of determining if probable cause exists to hold one accused of a crime for trial. Rouse v. State (1902), 44 Fla. 148, 32 So. 784; Davis v. State (Fla.1953), 65 So.2d 307; Baugus v. State (Fla.1962), 141 So.2d 264. It is...
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