Sharon v. State, 62-28
| Decision Date | 17 September 1963 |
| Docket Number | No. 62-28,62-28 |
| Citation | 156 So.2d 677 |
| Parties | Bernard SHARON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
George S. Okell, Sr., Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard R. Mellon, Asst. Atty. Gen., for appellee.
Before BARKDULL, C. J., and CARROLL and HENDRY, JJ.
The appellant seeks reversal of convictions of operating a gambling room, aiding and abetting a lottery, bookmaking and possession of lottery tickets, upon which convictions he was sentenced to various terms in both the State penitentiary and the County jail.
The appellant on this appeal seeks reversal upon three propositions: (1) whether the trial court erred in denying the appellant's motion to suppress evidence seized in an allegedly illegal search and seizure; (2) that the convictions and sentences thereon are not sustained by substantial evidence; and (3) whether the sentences were properly imposed.
As to the first proposition, the appellant filed a motion to suppress the evidence seized, pursuant to a search warrant, on the ground that the warrant was illegally executed in that while the warrant was directed to 'all and singular the Sheriffs and/or Deputy Sheriffs of Dade County, Florida, or any Constable of said County: * * *' 'The search warrant shall in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer requiring it, said officer being present and acting in its execution.' [emphasis added]
[the office of Sheriff of Dade County, Florida, is non-existent having been abolished by law], the warrant was actually served by a Deputy Metropolitan Sheriff of Dade County, in violation of § 933.08, Fla.Stat., F.S.A., which reads as follows:
The appellant here, in advancing the foregoing argument, has pointed out a distinction without a difference and any attempt by this court to lend credence to such an argument would violate the universal rule that statutes must be so construed as to avoid absurd results. See: City of Miami v. Romfh, 66 Fla. 280, 63 So. 440; Johnson v. State, Fla.1956, 91 So.2d 185. The direction of a search warrant to a sheriff and/or deputy sheriff constitutes a command to that person who performs the duties pertaining to the office of sheriff. Therefore, as the duties and functions of the office of sheriff in Dade County are vested in the Metropolitan Sheriff of Dade County, the direction of the search warrant in the instant case, 'To the Sheriff and/or Deputy Sheriffs of Dade County * * *', constitutes a sufficient identification of the Metropolitan Sheriff valid and within the scope and intent of § 933.08 Fla.Stat., F.S.A., supra. In so holding, we hereby affirm the lower court's refusal to suppress the evidence obtained under the search warrant in the instant case.
As to the second proposition, the appellant questions the sufficiency of the evidence to support the convictions below. Upon such an assignment of error, the appellate court merely examines the record with the view of determining whether or not substantial evidence to support the verdict is present and should evidence of that character be found, to affirm the verdict. See: Thornton v. State, 141 Fla. 471, 193 So. 537; Zalla v. State, Fla.1952, 62 So.2d 649. The record in the instant case has been examined, in light of the foregoing principles, and there appears substantial evidence to support the verdict.
The last proposition is that the sentences were improperly imposed. In the case sub judice judgment and sentence was imposed under each of four counts for gambling law violations. As to Count One, operating a gambling room, two years in the State penitentiary; as to Count Two, aiding and assisting in the setting up, promoting...
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