State Ex Rel. Cacciatore v. Drumright

• Decision Date: 11 September 1934
• Parties: STATE ex rel. CACCIATORE v. DRUMRIGHT, Acting Judge, et al.
• Court: Florida Supreme Court

156 So. 721

116 Fla. 496

STATE ex rel. CACCIATORE v. DRUMRIGHT, Acting Judge, et al.

Florida Supreme Court

September 11, 1934

Rehearing Denied Oct. 22, 1934.

En Banc.

Error to Circuit Court, Hillsborough County; Paul C. Albritton Judge.

Petition for prohibition by the State of Florida, on the relation of Joe Cacciatore, against E. B. Drumright as acting Judge of the Municipal Court of the City of Tampa, a municipal corporation, and the City of Tampa. To review a judgment denying the writ, the relator brings error.

Affirmed.

COUNSEL

Zewadski & Pierce, of Tampa, for plaintiff in error.

Alonzo B. McMullen and M. Henry Cohen, both of Tampa, for defendants in error.

OPINION

BROWN Justice.

Plaintiff in error, Joe Cacciatore, was tried in the municipal court of Tampa, upon a docket charge which ineffectually attempted to allege a violation of City Ordinance No. 455-A. Plaintiff in error interposed a motion to quash on the ground that the facts alleged were insufficient to show a violation of the ordinance. The municipal judge overruled this motion, and after trial entered a judgment of conviction and a sentence of imprisonment. Plaintiff in error then brought a habeas corpus proceeding before the circuit court of Hillsborough county, and secured a judgment to the effect that the charge upon which the defendant was being held, and upon which he had been tried and convicted in the municipal court, did not state an offense against either the city of Tampa or the state of Florida, and ordering the petitioner to be discharged from custody. Subsequently another docket charge was entered in the municipal court which appears to be conceded by plaintiff in error, inferentially at least, to sufficiently charge the defendant with certain acts which do constitute a violation of said Ordinance 455-A. After the arrest of the accused on the latter charge the accused filed a petition for writ of prohibition in the circuit court, claiming that both docket charges charged the same offense, and alleging former jeopardy, in that the accused could not again be tried for the same offense of which he had previously been convicted by the same court, which judgment of conviction stood unreversed and unrevoked. The respondents filed demurrer and answer, and after hearing the circuit judge entered an order denying that the petitioner was entitled to the absolute writ upon the alleged ground of former jeopardy, as set forth in the petition, but granting the writ as to any further action by the acting judge on another ground, holding that the regular municipal judge had no right to disqualify himself, which it is not material for us here to consider, as the only assignment of error is that the circuit judge erred in denying the absolute writ of prohibition upon the ground of former jeopardy; thus raising a question going to the power of either the regular or the acting judge to proceed further in the case.

Our view is that plaintiff in error, if he was entitled to any remedy at all on the alleged ground of former jeopardy, was certainly not entitled to a writ of prohibition, as that was defensive matter and presented a question that could have readily been raised by plea in the municipal court, which was the proper forum in which to raise it; and, if the action of the municipal court thereon, if and when taken, had been adverse to plaintiff in error, and deemed by him to be erroneous, he could have had an adequate remedy for the review and correction of such supposed error in a higher court, by writ of error, in the regular, orderly, and usual procedure in such cases. The municipal court had jurisdiction of the subject-matter and the parties, and could have given the accused the benefit of any defense which he was lawfully entitled to interpose. The writ of prohibition could not properly have been resorted to in order to get an anticipatory ruling on the question by a higher court before giving the municipal court in which the case was pending, and which had the power to act, an opportunity to rule on it. The circuit court was therefore acting advisedly when it denied the writ so far as the matter of former jeopardy was concerned.

The writ of prohibition is designed to prevent an inferior court from usurping a jurisdiction with which it is not legally vested, or from exceeding the limits of the jurisdiction with which it is vested. In other words, it lies when there is a total lack of jurisdiction, or action is threatened which would be in excess of jurisdiction. It was never designed to prevent the erroneous exercise of an existing jurisdiction, or to be used as a substitute for a writ of error or appeal. Sherlock v. Jacksonville, 17 Fla. 93; State v. Baker, 20 Fla. 616; State v. Smith, 32 Fla. 476, 14 So. 43; State v. Hocker, 33 Fla. 283, 14 So. 586; State v. Malone, 40 Fla. 129, 23 So. 575; Crill v. State Road Dept., 96 Fla. 110, 117 So. 795.

But plaintiff in error contends that the municipal court was without jurisdiction to proceed with a trial on the second docket charge because its judgment of conviction on the first charge stood unrevoked and unreversed, and both charged the same offense; that therefore its jurisdiction had terminated. Citing Feger v. Fish, 106 Fla. 564, 143 So. 605. Conceding for the sake of argument only that, if this contention were well founded in fact, it would afford good ground for a writ of prohibition, the plaintiff in error cannot be heard to assert it, because he obtained a discharge by habeas corpus from imprisonment under said judgment of conviction on the ground that the first docket charge, on which the judgment was rendered, did not state any offense against the ordinances of the city or the laws of the state, and, in effect, that the municipal court judgment based thereon was void, and furnished no authority for holding the petitioner in custody. This judgment of the circuit court in the habeas corpus proceeding amounted to res judicata on this question so far as plaintiff in error, and the city of Tampa and its municipal court, were concerned; and it also stands unrevoked and unreversed.

While there are many cases decided in other states which recognize various exceptions and limitations upon the doctrine of res judicata as applied to orders and judgments in habeas corpus proceedings, the general rule in most jurisdictions is that an order or judgment discharging a person in such proceedings is conclusive in his favor that he is illegally held in custody and is res judicata of all issues of law and fact necessarily involved in that result, and he cannot be again arrested for the same cause; that is, upon the same warrant, indictment, or information which was therein held illegal. While it usually terminates the pending proceeding against the petitioner, it does not necessarily prevent the institution of a subsequent prosecution against him under proceedings which are legal and sufficient and which remove the illegalities, or supply the defects, on account of which the order of discharge was granted. See 29 C.J. 178; 15 Am. & Eng. Encyc. of Law, 212, 213; 12 R. C. L. 1254. 'It is the well established rule, however, that discharge upon habeas corpus operates as a bar and estoppel only as to the particular proceeding or process under review, and is res judicata only upon the same question presented under the same state of facts.' See 12 R. C. L. 1254, and cases cited. The courts in many states make a distinction between the res judicata effect of orders discharging the prisoner and orders refusing to discharge or denying the writ, or remanding the prisoner. See 29 C.J. 179. However, our statute, sections 5441-5443, Comp. Gen. Laws, makes both a judgment remanding, as well as one discharging, a prisoner, 'conclusive until reversed in the manner' provided by statute. And it further provides that no person who shall be discharged from confinement by such a judgment shall be afterward confined or imprisoned 'for the same cause,' unless by order or judgment of a court of competent jurisdiction. Section 5444 provides for review of both classes of judgments in habeas corpus proceedings by writ of error. In some states it is held that the effect of such statutes as ours, sections 5441-5444, Comp. Gen. Laws, is to place a decision in a habeas corpus proceeding on the same footing as a decision in any other suit or proceeding so far as the application of the doctrine of res judicata is concerned. 29 C.J. 180; 12 R. C. L. 1255. This court, while apparently recognizing this principle as generally applicable, has held that as to cases involving arrests under a Governor's warrant in extradition proceedings, a discharge by habeas corpus, though standing unreversed, would not absolve the prisoner from being arrested a second time on a new warrant issued by the Governor. Kurtz v. State, 22 Fla. 36, 1 Am. St. Rep. 173. See, also, Ex parte Powell, 20 Fla. 806. But we have also held that extradition proceedings are sui generis. State v. Chase, 91 Fla. 413, 107 So. 541. In Kurtz v. State, supra, it does not appear upon what ground the petitioner was discharged from custody under the Governor's first warrant. It may have been fatally defective in form and substance, which defect may have been remedied by the second and valid warrant.

Our conclusion that the judgment of the circuit court in the habeas corpus proceeding, in so far as it held that the docket charge on which plaintiff in error was convicted did not state any offense, and that his detention thereunder was illegal, was res judicata of this question, appears to be well sustained, not only by the general authorities above cited, but also by our own statutes. This judgment of the circuit court was obtained by plaintiff in error and stands unreversed, and pl...