State ex rel. Wilson v. Quigg

• Citation: 17 So.2d 697,154 Fla. 348
• Parties: STATE ex rel. WILSON v. QUIGG, Chief of Police of City of Miami.
• Decision Date: 18 April 1944
• Court: United States State Supreme Court of Florida

17 So.2d 697

154 Fla. 348

STATE ex rel. WILSON v. QUIGG, Chief of Police of City of Miami.

Florida Supreme Court

April 18, 1944

Rehearing Denied May 10, 1944.

Appeal from Circuit Court, Dade County; George E. Holt judge.

G. A Worley and Jack Kehoe, both of Miami, for appellant.

J. W Watson, Jr. and W. W. Charles, both of Miami, for appellee.

BROWN, Justice.

On September 18 1943, one C. F. Huttoe, a police officer of the City of Miami, made an affidavit for a search warrant before one of the Judges of the Circuit Court in and for Dade County in which he alleged that in a certain residence, described by street and number, in the City of Miami, Dade County, Florida, gaming and gambling was being conducted by persons whose names to affiant were unknown, and that in said house 'lottery tickets are offered for sale and sale of lottery tickets and other gambling paraphernalia contrary to the laws of the City of Miami and State of Florida.'

Thus the affidavit in effect charged that in said house certain unknown persons were offering for sale and selling lottery tickets in violation of a city ordinance and also a State law--which latter, parenthetically, constitutes a felony.

The Circuit Judge on that same day issued a search warrant, addressed to any police officer of the City, which described the matters set forth in the affidavit as in substance charging that certain persons, whose names were unknown to affiant, were using the described building 'for the purpose of gaming and gambling, to-wit: Lottery Tickets, contrary to the laws of the City of Miami and the State of Florida,' and ordered that said building be searched, and all gambling paraphernalia and equipment be seized, and that if found to bring said goods or property and all persons found therein, connected with said gaming and gambling, before the Municipal Court of the City of Miami, Dade County, Florida, to be dealt with according to law.

The return was signed by another police officer, one R. J. Ryder, on the same day, and reported the search and seizure of certain property in illegal operation which had been turned over to the Miami Municipal Court, and the serving of a copy of the search warrant, on the premises, upon one Daisy Wilson; said property thus left with the court to be used in the prosecution in said court of said Daisy Wilson in a case styled City of Miami v. Daisy Wilson, No. 4096. The return states that an inventory of the property was thereto attached.

Thereafter counsel for Daisy Wilson filed in the Circuit Court a petition for writ of habeas corpus. While the search warrant is, to say the least, a bit vague in describing the offense, the petition was based solely upon the ground that the search warrant was null and void because it was not made returnable to a court having jurisdiction of the offense described therein nor of any offense against the State of Florida. The petition alleged that petitioner was being illegally held in the City jail by Chief of Police H. Leslie Quigg. One of the Circuit Court Judges granted the writ and the Chief of Police filed his return in which he said that petitioner was being lawfully held for trial on a charge of violating a valid City ordinance, No. 1570, case No. 4096, a copy of the blotter docket being attached, and denied that the search warrant was illegal, attaching a copy, and denied that it was not made returnable before a court of competent jurisdiction. The copy of the 'blotter docket' shows that petitioner was charged with setting up and promoting a lottery on September 18, 1943, and that she did then and there have in her possession 'certain lottery tickets representing a live interest in a lottery yet to be played for money,' etc., in violation of ordinance No. 1570 of said City.'

Petitioner filed a motion to quash the return on general grounds to the effect that the return showed that petitioner was being held without authority of law, and also upon the ground that the warrant set up in the return as authority for holding petitioner in custody was void (a) for that it showed on its face that it was not issued in compliance with law, and (b) that said warrant was made returnable to a court not having jurisdiction over the offense or offenses mentioned in said search warrant.

This motion was denied by Circuit Judge Holt, who, realizing the importance of the question, which is a new one in this State, wrote a well-prepared opinion in support of his conclusion. He stated that the question presented by the petitioner was: 'Can the Circuit Court issue a warrant pertaining to an offense against an ordinance of a municipality and make the same returnable to a municipal court having jurisdiction of said offense?'

It will have been noted that the offense charged or referred to in the search warrant was admittedly one against both the law of the State and the ordinance of the municipality. The substantive offense, in aid of which the search warrant was evidently obtained, was set out with more definiteness and particularity on the 'blotter' or trial docket of the municipal court.

From the judgment of the court overruling the motion to quash and remanding the petitioner to custody, this appeal was taken. Petitioner, in order to be safe on the question of the method of invoking appellate review here, sued out writ of error also.

In order to avoid any confusion with reference to this matter of the proper method for invoking appellate review by this court in habeas corpus proceedings we might say that Supreme Court Rule 2, providing that all relief heretofore obtained by writ of error shall be obtained by appeal as in equity, which became effective April 1, 1942, while broad and sweeping in its terms, must be considered in connection with the proviso in Supreme Court Rule 36, and when so considered it will be seen that neither of said rules was intended to abolish writs of error in habeas corpus proceedings. The constitution, Sections 5 and 11 of Article V, gives this court, or any justice thereof, and the Circuit Court or any judge thereof, the power to grant writs of habeas corpus, and under Section 79.11, Florida Statutes 1941, F.S.A. (which was Section 5444, C.G.L.) the judge hearing a habeas corpus proceeding is given authority to 'grant * * * a writ of error returnable to the next term of the supreme court, or to the court in term, if the writ is applied for during the session of the court,' and that the hearings on such writs of error shall have preference over all other cases. Thus the statute vests in the judge hearing the cause the authority to allow or grant writs of error to this Court in such cases. So habeas corpus proceedings are in a somewhat different class from ordinary legal or equitable proceedings, as a reading of Chapter 79 of the Florida Statutes of 1941, F.S.A., will show.

See in this connection Roach v. Keep, 73 Fla. 1048, 75 So. 528. The holding in that decision was complied with in this case, application for writ of error having been made to and allowed by the Circuit Judge under Section 5444, C.G.L., now 79.11 F.S.1941, F.S.A., as contemplated by the proviso in said Rule 36, and was therefore sufficient to bring the case to this court for review. For these reasons we have continued to entertain writs of error, when properly applied for and allowed by the Circuit Court, as a means of invoking appellate review in this court of judgments in habeas corpus proceedings. However, the method of review by appeal under our Rule 2, which is more simple and expeditious, can also be availed of in habeas corpus proceedings when allowed by the judge hearing the cause as provided in Section 79.11, supra. Undoubtedly the right of appellate review by this court, when properly applied for, is contemplated by Section 5, Article V of the Constitution, although the method of invoking such review is not prescribed therein. Appellate jurisdiction having been vested in this court by the Constitution, the manner or method of invoking it, not being of such vital importance, was left by the Constitution to the court and the Legislature. As we have several times held, this court has the power under the statute of 1929, Section 25.03 Florida Statutes 1941, F.S.A., to regulate its appellate procedure, and it doubtless had the inherent power to do so without statutory authorization. In the exercise of that power we adopted our present Rule 2, which affords a simple and uniform method of invoking the appellate jurisdiction of this court in all cases at law or in chancery by appeal, as in chancery cases, which method has proven quite satisfactory to the bench and bar of the State. But for the reasons above pointed out, we have not held that such is the exclusive method of invoking appellate review in habeas corpus proceedings. As above stated, it is the appellate jurisdiction of this court which the Constitution grants, not the method of invoking its exercise. And writs of error or appeals are merely methods of invoking appellate jurisdiction and bringing up the record in aid of the exercise of that jurisdiction, which jurisdiction is conferred not by the writ or the appeal, but by the Constitution and the law. Palmer v. Johnson Const. Co., 97 Fla. 479, 121 So. 466, headnote 3.

At this juncture of question arises as to whether the validity of the search warrant can be questioned here on this appeal from the judgment in the habeas corpus proceedings in view of the fact that the return of the respondent Chief of Police showed that the petitioner below was held, not only by virtue of the search warrant, but also by reason of the entry upon the 'blotter' or trial docket of the municipal court which entry charged petitioner with violating a City ordinance in apparently sufficient form to apprise ...