Smith v. State

• Decision Date: 03 June 1966
• Docket Number: No. 6961,6961
• Citation: 187 So.2d 61
• Parties: Earnest Donald SMITH, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 61

187 So.2d 61

Earnest Donald SMITH, Petitioner, v. STATE of Florida, Respondent.

No. 6961.

District Court of Appeal of Florida, Second District.

June 3, 1966.

C. J. Abernathy, of Jenkins & Abernathy, St. Petersburg, for petitioner.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for respondent.

ALLEN, Chief Judge.

Petitioner Smith, defendant below, filed a petition for certiorari seeking to review an order denying a motion for continuance, filed by newly secured attorneys, in the first degree murder case wherein a new trial had been granted by the court below.

The petitioner was tried and convicted in August, 1965. A motion for a new trial, filed by his privately retained counsel, was granted on January 21, 1966. The court set the new trial for January 31, 1966. The attorney then representing the defendant, advised the court that he had not been paid for a new trial. The court determined that the petitioner was insolvent and then appointed the attorney who had represented the defendant in the first trial, an experienced lawyer of St. Petersburg, Honorable James F. Snelling, to represent him at the second trial and for him to be paid by the State.

On January 28, 1966, the firm of Jenkins and Abernathy filed a notice of appearance in the case and filed a motion for continuance, which was denied. This is the order sought to be reviewed by certiorari. In addition to the petition for writ of certiorari, an appeal has been filed in this court to review the judgment of the circuit court bearing date February 18, 1966.

We shall not discuss the merits vel non of the motion for a continuance as we are of the view that under the factual situation in this case certiorari will have to be denied. The motion for continuance was, in effect, an interlocutory order and any error that might have been committed by the trial judge can be properly reviewed in the appeal pending in the case.

In the case of Tart v. State, 1928, 96 Fla. 77, 117 So. 698, our Supreme Court held that certiorari would not lie to review correctness of a trial court's order striking the defendant's pleas in bar. Pleas involved were those of autrefois acquit. In its opinion, the Supreme Court stated:

'Certiorari cannot be employed as a substitute for a writ of error. In order to justify the issuance of a writ of certiorari, it must ordinarily appear from the face of the record of an inferior court or tribunal that in rendering its final judgment it has acted in usurpation of a jurisdiction it did not possess, or that there has been a palpable abuse of power resulting in a miscarriage of justice, or that the court or tribunal has not proceeded according to the essential requirements of law, as distinguished from the commission of a mere error of judgment; and, in addition, it must appear that there is no plain, speedy, and adequate remedy by appeal or writ of error to correct such action. Benton v. State, 74 Fla. 30, 76 So. 341; Haile v. Gardner, 82 Fla. 355, 91 So. 376. See, also, Hunt v. (City of) Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am.St.Rep. 214; Basnet v. City of Jacksonville, 18 Fla. 523; Edgerton v. Mayor, etc., of Green Cove Springs, 18 Fla. 528; American Ry. Express Co. v. Weatherford, 84 Fla. 264, 93 So. 740; 11 C.J. 113.

'Mere error in the determination of nonfundamental procedural or other questions properly submitted to and regularly determined by a trial court will not ordinarily justify the exercise of the supervisory jurisdiction of this court by certiorari, when such errors result only in an erroneous as distinguished from a void or illegal judgment, and no palpable abuse of authority, usurpation of jurisdiction, or manifest miscarriage of justice appears. Errors of that nature can ordinarily be reviewed only upon writ of error to the final judgment in the exercise of the purely appellate...