Sawyer v. State

Decision Date29 June 1927
Citation94 Fla. 60,113 So. 736
PartiesSAWYER v. STATE.
CourtFlorida Supreme Court

Judgment reaffirmed August 1, 1927.

En Banc.

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

Jack E Sawyer was convicted of breaking and entering, and he brings error.

Affirmed.

Ellis C.J., and Buford, J., dissenting.

Syllabus by the Court

SYLLABUS

Generally formal and clerical errors and omissions in orders and judgments may be corrected at any time; substantial or judicial amendments or changes in orders and judgments cannot be made after expiration of term. The general rule is that formal and clerical errors and omissions in orders and judgments, due to inadvertence of either the court or the clerk, may be corrected by the court at any time, but substantial or judicial amendments or changes cannot be made after the expiration of the term.

Denying motion after term to correct record to show order allowing time for presenting bill of exceptions, based on counsel's affidavit that judge stated he should have usual time, held not error. The trial court will not be held in error for denying a motion made after the expiration of the term to correct the record of the proceedings during the term so as to show an order allowing 90 days for the presentation of bill of exceptions, upon the alleged ground supported by affidavit of counsel, that the presiding judge at the time stated that counsel should have 'the usual time'; it not being made clearly to appear that the court at the time intended to make such order, and same being too indefinite.

Trial court may not grant extension of time for filing transcript of record in Supreme Court. The trial court is without authority to grant an extension of time within which to file transcript of record in this court.

If reference to record clearly shows jury intended to find particular defendant guilty, verdict is not defective as to identity of defendant; where information charged Jack Sawyer alias Charlie Sawyer, with breaking and entering, verdict finding Jack Sayer, alias Charlie Sayer, guilty as charged held not defective. A verdict is not defective as to the identity of the person convicted or the crime of which he was found guilty, when, by reference to the record, it is made clearly to appear that the jury intended to find the particular defendant guilty of the crime charged.

Persons accused of felonies less than capital need not in all cases be proceeded against by indictment; prosecution may be on information for all offenses triable in criminal courts of record, which have jurisdiction of all criminal cases not capital; parties may be prosecuted on information, in criminal court of record of Hillsborough county, for breaking and entering (Declaration of Rights, § 10, art. 5, §§ 24-28; Rev. Gen. St. 1920, § 5116). Section 10 of the Declaration of Rights contained in the Constitution of 1885, when construed in connection with section 28 of article 5, does not require that persons accused of felonies less than capital shall in all cases be proceeded against only upon presentment or indictment by a grand jury, but, on the contrary, expressly authorizes prosecution upon information under oath, filed by the prosecuting attorney, for all offenses triable in criminal courts of record, which courts have jurisdiction of all criminal cases not capital.

Constitutional provision permitting indictment for offenses triable in criminal court of record does not require person prosecuted on information therein first to be indicted (Const. art. 5 §§ 24-28). The provision in section 28 of article 5, that the grand jury of the circuit court for the county in which the criminal court of record was held may indict for offenses triable in the criminal court of record, does not mean that no person can be prosecuted upon information in such criminal court of record until he has first been indicted by the grand jury.

Persons may be tried for crimes less than capital in counties having criminal courts of record on informations; that persons in counties containing criminal courts of record may be tried on information for offenses less than capital, while indictments are required in other counties, does not deprive residents of former counties of equal protection of laws or of due process of law (Const. art. 5, §§ 24-28; Const. U.S. Amend. 14). Although, under sections 24 to 28 of article 5 of our Constitution and the statutes adopted in pursuance thereof, persons accused of felonies and other crimes less than capital may be tried in counties having criminal courts of record upon informations filed by the county solicitor under oath, while in other counties of the state not having such courts indictments by the grand jury are required, this does not operate to deprive persons in counties where such courts of record are established of the equal protection of the laws or of due process of law, within the meaning of the Fourteenth Amendment to the federal Constitution, or of similar provisions in our state Constitution.

Right to be proceeded against in state court for infamous crime against state laws by indictment is not secured by federal Constitution (Amend. 14). The privileges of a citizen of the United States, which may not, under the provisions of the Fourteenth Amendment to the federal Constitution, be abridged by the making or enforcement of a state law, do not include the right to be exempt from trial in a state court for an infamous crime against the laws of such state unless upon presentment or indictment by a grand jury.

Statutes providing for prosecution of felonies by information formerly prosecuted by indictment are generally valid. Statutes providing for the prosecution of felonies by information which were formerly prosecuted by indictment are generally considered as mere changes in the method of procedure within the discretion of the law-making power, and hence valid when not in conflict with any provision of the state Constitution.

Equal protection of laws does not secure benefit of same laws and remedies (Const. U.S. Amend. 14). That clause of the Fourteenth Amendment to the federal Constitution which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws was not intended to secure to all persons in the United States the benefit of the same laws and the same remedies, whether as between states, or as between different sections of the same state.

Defendant pleading not guilty, and going to trial waives objection to assistant county solicitor's lack of authority to sign and file information; refusal to vacate judgment after term for lack of assistant county solicitor's authority to sign and file information held not error (Rev. Gen. St. 1920, §§ 2813, 2814, 5972, 5974, 5975, 5976, 6064; Declaration of Rights, § 11). Where, upon a prosecution for felony on an information signed, sworn to, and filed by the assistant county solicitor, the defendant, without making any motion to quash the information or otherwise objecting, pleads not guilty and goes to trial, he thereby waives any objection to the alleged lack of authority on the part of such assistant county solicitor to sign and file such information, and the trial court was free from error in denying a motion to vacate the judgment on such ground filed after the expiration of the term of court at which the trial was had and judgment rendered.

Motion in arrest of judgment cannot be made after term; motion to vacate judgment for want of jurisdiction is not limited to term at which it was rendered. A motion in arrest of judgment is ordinarily interposed after verdict and before judgment and sentence and cannot be made after the term has expired, but a motion to vacate a judgment for want of jurisdiction is not limited to the term at which it was rendered.

Every presumption favors judgment and legality of proceedings of court of general jurisdiction acting within jurisdiction. When a court of general jurisdiction acts within such jurisdiction, every presumption is in favor of its judgment and the legality of its proceedings.

Acts of person exercising powers of de jure office by color of right, are generally binding on public and third persons; information for breaking and entering, signed, sworn to, and filed by assistant county solicitor, held sufficient on motion to vacate judgment after term (Rev. Gen. St. 1920, §§ 5116, 5972, et seq.). When it appears that a person exercising the powers of a de jure office does so by color of right, and that he has such possession of the office as makes him in law an officer de facto, then his acts, as to third persons and the public, are, as a general rule, valid and binding.

On motion after term to vacate judgment, that county solicitor authorized, or adopted and ratified, assistant solicitor's filing information will be presumed (Rev. Gen. St. 1920, § 5975). Both the court and the defendant having without objection recognized and acquiesced in the authority of the assistant solicitor to sign and file the information and represent the state in the prosecution, it will be presumed in aid of the court's jurisdiction, when attacked after the term by motion to vacate judgment, that the county solicitor had either expressly authorized, or adopted and ratified, the filing of the information.

Defects in indictments and informations should be attacked by motion to quash or demurrer; neither common law nor statutes favor attacking defects in indictment or information by motion in arrest of judgment, or by motion to vacate judgment. Defects in indictments and informations should be called to the attention of the trial court by a motion to quash or a demurrer, so that the defects, if any, may be corrected by the filing...

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    • United States
    • Florida Supreme Court
    • 28 Mayo 1936
    ... ... 36, 46 So. 151; Caldwell v ... People's Bank of Sanford, 73 Fla. 1165, 75 So. 848; ... Golding v. State, 31 Fla. 262, 12 So. 525; Lake ... v. State, 100 Fla. 373, 129 So. 827, 131 So. 147; ... Ephriam v. State, 82 Fla. 93, 89 So. 344; Taylor ... v. State, 88 Fla. 555, 102 So. 884; Sawyer v ... State, 94 Fla. 60, 113 So. 736 ... [124 ... Fla. 415] Such motions are made after verdict and before ... judgment, but they are not favored. When a verdict is ... defective on its face a motion in arrest of judgment is the ... proper method of attack. See Harris v. State, 53 ... ...
  • City of Winter Haven v. A. M. Klemm & Son
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    • 5 Abril 1938
    ...color of authority. Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178; State v. Gleason, 12 Fla. 190, 233; Sawyer v. State, 94 Fla. 60, 113 So. 736. There can be no de facto corporation unless a de corporation could have been created by or pursuant to a valid statute, or unl......
  • Card v. Dugger
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 4 Septiembre 1990
    ...of a de facto judge is clearly established under Florida law, and is based on sound public policy considerations. See Sawyer v. State, 94 Fla. 60, 113 So. 736 (1927). Finally, it noted that Card had failed to establish any prejudice from the lack of a technically proper assignment, as he ne......
  • Kennedy v. Walker
    • United States
    • Connecticut Supreme Court
    • 22 Diciembre 1948
    ...56 S.Ct. 461, 80 L.Ed. 682. 2Kalloch v. Superior Court, 56 Cal. 229, 239; State v. Boswell, 104 Ind. 541, 543, 4 N.E. 675; Sawyer v. State, 94 Fla. 60, 70, 113 So. 736; State v. Manley, 197 Iowa 46, 52, 196 N.W. 724; State v. Barnett, 3 Kan. 250, 253, 87 Am.Dec. 471; Lakes v. Goodloe, 195 K......
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1 books & journal articles
  • Florida's third species of jurisdiction.
    • United States
    • Florida Bar Journal Vol. 82 No. 3, March 2008
    • 1 Marzo 2008
    ...Coffrin v. Sayles, 128 Fla. 622, 630 (Fla. (1937).) See also Krivitsky v. Nye, 19 So. 2d 563, 568 (Fla. 1944). (43) See Sawyer v. State, 113 So. 736 (Fla. 1927); Fla. Power and Light Co. v. Canal Auth., 423 So. 2d 421, 425 (Fla. 5th D.C.A. 1982); Smith v. Milwaukee Ins. Co., 197 So. 2d 548,......

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