Pelaez v. State

• Decision Date: 18 October 1932
• Parties: PELAEZ v. STATE.
• Court: Florida Supreme Court

144 So. 364

107 Fla. 50

PELAEZ v. STATE.

Florida Supreme Court, Division B.

October 18, 1932

Error to Criminal Court of Record, Hillsborough County; W. R Petteway, Judge.

Charles pelaez was convicted of feloniously buying, receiving concealing, and aiding in concealment of stolen property, and he brings error.

Reversed.

COUNSEL Whitaker Brothers, of Tampa, for plaintiff in error.

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

OPINION

WHITFIELD P.J.

The information herein charges that 'Charles Peleaz late of the County of Hillsborough aforesaid, in the State aforesaid on the 29th day of June in the year of our Lord, one thousand nine hundred thirty one with force and arms at and in the County of Hillsborough aforesaid, Fifteen sacks of sugar, a further description of each of which is to the Acting Solicitor unknown, of the aggregate value of forty-five dollars in money current of the United States of America, the property of O'Berry and Hall Company, a corporation, which had theretofore unlawfully and feloniously been taken, stolen and carried away, and which said property was then and there stolen property, did unlawfully and feloniously buy, receive, conceal and aid in the concealment of said property, the said Charles Pelaez then and there well knowing at the time he so bought, received, concealed and aided in the concealment of said property as aforesaid, that said property was then and there stolen property against the form of the Statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the State of Florida; wherefore the said Wm. L. Pencke, Acting County Solicitor aforesaid, prosecuting for the State of Florida aforesaid, prays the advice of the Court in the premises and that a capias may be issued forthwith for the arrest of said Charles Pelaez and that he be held for trial under the goregoing information.

'Wm. L. Pencke

'Acting County Solicitor for the County of Hillsborough, Prosecuting for the State of Florida.'

At the trial the following verdict was rendered:

'We the jury find the defendant guilty as charged in the information, and we find the value of the property to be $600.00, so say we all.'

The judgment rendered reads:

'Now on this day came in person the defendant Charles Pelaez and being asked by the Court whether he had anything to say why the sentence of the Court should not now be pronounced upon him, say nothing.

'It is therefore, the judgment, order and sentence of the Court that you Charles Pelaez for the crime of which you have been and stand convicted be confined in the County Jail of IIillsborough County Florida for a period of one year.'

It is contended that the trial court erred in overruling a motion to quash the information because it was signed, sworn to, and filed by an 'Acting County Solicitor' and not by the 'County Solicitor.'

The Constitution provides for the establishment of criminal courts of record in counties 'upon application of a majority of the registered voters in such other counties as the Legislature may deem expedient.' Section 24, art. 5. 'The said Courts shall have jurisdiction of all criminal cases not capital which shall arise in said counties respectively.' Section 25. 'There shall be for each of said Courts a prosecuting attorney, who shall be appointed by the Governor and confirmed by the Senate.' Section 27. 'All offences triable in said Court shall be prosecuted upon information under oath, to be filed by the prosecuting attorney, but the grand jury of the Circuit Court for the county in which said Criminal Court is held may indict for offenses triable in the Criminal Court.' Section 28.

The Constitution also contains the following:

'The Legislature shall provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution, and fix by law their duties and compensation.' Section 27, art. 3.

The statutes provide:

'The prosecuting attorney of the criminal court of record shall called the county solicitor, and his powers, duties and obligations shall be the same as those exercised by and imposed upon the State attorney, except when otherwise provided.' Section 8241 (5972), Comp. Gen. Laws.

'Whenever there shall be a vacancy in the office of county solicitor in any of the counties of this State in which a criminal court of record is established, either by reason of non-appointment or otherwise, or if a county solicitor shall not be present at any term of the court, or, being present, shall from any cause be unable to perform the duties of his office, the judge of said court shall have full power to appoint a county solicitor from among the members of the bar with the consent of such member so appointed, to whom shall be administered an oath to faithfully discharge the duties of county solicitor, and who shall have as full and complete authority, and whose acts shall be in all respects as valid as a regularly appointed county solicitor. He shall sign all informations and other papers as acting county solicitor. The power of said appointee shall cease upon the filling of said office by appointment or upon the ability of the county solicitor to perform the duties of his office, a note of which shall be entered upon the minutes of the court. The compensation of such appointee shall be the same as that of the regularly appointed county solicitor, and shall be paid by the regular county solicitor and not by the county or State, in those cases in which the temporary appointment is made by reason of the absence, inability or disqualification of the regular county solicitor.' Section 8247(5974), Comp. Gen. Laws.

The Constitution provides that all offenses triable in a criminal court of record 'shall be prosecuted upon information under oath, to be filed by the prosecuting attorney,' that 'a prosecuting attorney * * * shall be appointed by the Governor and confirmed by the Senate,' and that 'the Legislature shall provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution;' and the statute provides that such prosecuting attorney 'shall be called the county solicitor.' Such 'prosecuting...