Schwarz v. Nourse, 80-1426

Decision Date29 October 1980
Docket NumberNo. 80-1426,80-1426
Citation390 So.2d 389
PartiesElton H. SCHWARZ, Public Defender of the Nineteenth Judicial Circuit, on behalf of all Indigent Juvenile Detainees, Petitioner, v. Philip G. NOURSE, Circuit Judge, Respondent.
CourtFlorida District Court of Appeals

Elton H. Schwarz, Public Defender, and Paul B. Kanarek, Chief Asst. Public Defender, Vero Beach, for petitioner.

Margaret Mann Blanton, Grall & Saliba, Vero Beach, for respondent.

BERANEK, Judge.

This matter has been considered on common law certiorari. The Public Defender of the Nineteenth Judicial Circuit attacks an order entered by respondent, a Circuit Judge. The order is set forth in full as follows:

IN THE CIRCUIT COURT OF THE

NINETEENTH JUDICIAL CIRCUIT IN

AND FOR ST. LUCIE COUNTY, FLORIDA

CASE NO. 80-10

C. J. Miscellaneous

IN RE: Juvenile Act of 1980

(SENATE BILL 0409)

_________________________________/

THIS CAUSE came on to be heard upon the oral request of various law enforcement officials of St. Lucie County, Florida, for guidance as to the aforesaid Act, and the State Attorney and Public Defender having been notified of the hearing, the Court finds as follows, to-wit:

The Act is confusing, impractical and not reflective of the intentions of the Legislators, i. e.:

1. The Legislature did not intend that children (some of which are thugs) when caught in the act of committing a serious crime such as burglary of a home, threatening children, scaring old people into a heart attack, eluding police officers in a wild chase down the highway, driving while intoxicated, leaving the scene of an accident, etc. BE TURNED LOOSE ON THE SPOT AND NOT BE DETAINED IN THE JUVENILE DETENTION CENTER pending the usual detention hearing.

2. The Legislature did not intend that the Courthouse remain open all night, seven days a week, in order to provide "record" information to authorities as to a juvenile's background (for purposes of determining detention).

3. The Legislature did not intend that juvenile thugs who assault detention home employees, incite riots therein or otherwise become uncontrollable be RELEASED OUT OF THE DETENTION HOME TO HARASS SOCIETY, but that the Legislature still desires that such 4. That the juvenile social experiment referred to by the United States Supreme Court, in re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), while of some benefit to society, by and large as now constituted, is a national disgrace.

thugs to transferred to a county jail in order to maintain safe detention facilities for other detainees as well as to maintain law and order for all concerned.

5. That it is probably unconstitutional as it deprives citizens (who happen to be young) of equal rights and equal protection under the law of the United States Constitution, such as jury trials, right to bail, a fair trial, etc.; and that as presently practiced, it needlessly permits some young thugs to trample upon the person and property of undefensible (sic) women, children and senior citizens.

It is therefore

ORDERED AND ADJUDGED that pursuant to the inherent authority of this Court 1 and pursuant to the words "UNLESS OTHERWISE ORDERED BY THE COURT " (F.S. 39.032(2) set out in the new statute, this Court "IS OTHERWISE ORDERING " that henceforth all juveniles caught in the act of or arrested for committing any serious crime, may be detained in a detention home pending the usual detention hearing required by law irrespective of the opinions, rules or regulations of the Florida Department of Health and Rehabilitative Services. When considering whether or not an offense is serious, the opinion of the officer and the opinion of the victim shall be given great weight. The officer shall have the authority to override the Department should he feel it desirable to protect society from the juvenile or that it is in the best interest of the child. It is further

ORDERED AND ADJUDGED that any language in the new Act repealing, contradicting or conflicting with the language (F.S. 39.032(a)(2) authorizing the jailing of a juvenile thug, which language recites as follows:

"When the court determines, upon the recommendation of the superintendent of the detention home, that the child would be beyond the control of the detention home staff ... he may be confined to jail."

be and the same is hereby declared unconstitutional because it is arbitrary, capricious, unworkable, inequitable, and because it violates the constitutional rights of the remainder of the citizenry to a free and safe society in which to live. See Aldana v. Holub, 381 So.2d 231 (Fla.). See also Section 21, Florida Declaration of Rights. The repealing language amounts to fostering upon the public a public nuisance and would result in excessive force being used to subdue the offending juveniles as well as subjecting confined cooperating children to physical danger if they refused to go along with "their peers." This Court refuses to believe that, in the proper situation, the Legislature intended to release murderers, robbers, rapists, kidnappers, etc., from detention out into the streets just because they...

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5 cases
  • Martinez v. Scanlan
    • United States
    • Florida Supreme Court
    • June 6, 1991
    ...only and improperly considered in a declaratory action. North Shore Bank v. Town of Surfside, 72 So.2d 659 (Fla.1954); Schwarz v. Nourse, 390 So.2d 389 (Fla. 4th DCA 1980); see also Florida Society of Ophthalmology v. State, Department of Professional Regulation, 532 So.2d 1278 (Fla. 1st DC......
  • Administrator, Retreat Hosp. v. Johnson In and For Broward County, 94-3196
    • United States
    • Florida District Court of Appeals
    • August 30, 1995
    ...the scope of its powers. Department of Health and Rehab. Servs. v. Upchurch, 394 So.2d 577, 579 (Fla. 5th DCA 1981); Schwarz v. Nourse, 390 So.2d 389 (Fla. 4th DCA 1980). We do not agree that the trial court's authority to entertain these proposals could be justified as an administrative or......
  • State, Dept. of Juvenile Justice v. Soud, 96-2551
    • United States
    • Florida District Court of Appeals
    • January 6, 1997
    ...would amend the statute in like manner were we permitted by law to do so. However, as was aptly said in the case of Schwarz v. Nourse, 390 So.2d 389 (Fla. 4th DCA 1980), where an order of similar import was vacated: Our theory of government is that of separation of powers. The Legislature a......
  • State ex rel. Dept. of Health and Rehabilitative Services v. Upchurch
    • United States
    • Florida District Court of Appeals
    • March 4, 1981
    ...would amend the statute in like manner were we permitted by law to do so. However, as was aptly said in the case of Schwarz v. Nourse, 390 So.2d 389 (Fla. 4th DCA 1980), where an order of similar import was vacated: Our theory of government is that of separation of powers. The Legislature a......
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