State v. Creighton

• Decision Date: 02 May 1985
• Docket Number: No. 64471,64471
• Citation: 10 Fla. L. Weekly 257,469 So.2d 735
• Parties: 10 Fla. L. Weekly 257 STATE of Florida, Petitioner, v. Chapman Levi CREIGHTON, Respondent.
• Court: Florida Supreme Court

Page 735

469 So.2d 735

10 Fla. L. Weekly 257

STATE of Florida, Petitioner, v. Chapman Levi CREIGHTON, Respondent.

No. 64471.

Supreme Court of Florida.

May 2, 1985.

Rehearing Denied June 20, 1985.

Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.

P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.

BOYD, Chief Justice.

This cause is before the Court on petition for review of a decision of the District Court of Appeal, First District, State v. Creighton, 438 So.2d 1042 (Fla. 1st DCA 1983). The decision of which review is sought is an order dismissing an appeal brought by the state in a criminal case. The district court certified that its decision directly conflicts with State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), review denied, 419 So.2d 1201 (Fla.1982). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent was charged in a two-count information with first-degree arson in violation of section 806.01(1)(a), Florida Statutes (1981), ¹ and failure to put out or control a fire or give a prompt fire alarm in violation of section 877.15(1), Florida Statutes (1981). ² The case proceeded to trial and at the close of the evidence, respondent moved for a judgment of acquittal on both counts on the ground that the evidence was insufficient to warrant convictions. See Fla.R.Crim.P. 3.380. ³ The judge declined to grant judgment of acquittal at that time and submitted the case to the jury. The jury returned a verdict of not guilty on count one, arson, but a verdict of guilty on the second count, charging failure to put out or control a fire or give a prompt alarm by a person with a legal duty to do so.

Five days after the reception of the verdicts in court, the defense filed a combined motion for arrest of judgment, renewal of the motion for judgment of acquittal, and motion for new trial. The court held a hearing on the renewal of the motion for judgment of acquittal. Following the hearing, the trial judge granted judgment of acquittal on count two.

The state brought an appeal from the trial court's judgment and the district court of appeal dismissed the appeal. The issue before us is whether the state is entitled to appellate review of the trial court's order granting judgment of acquittal.

Section 924.07, Florida Statutes (1981), authorizes appeals by the state in criminal cases as follows:

The state may appeal from:

(1) An order dismissing an indictment or information or any count thereof;

(2) An order granting a new trial;

(3) An order arresting judgment;

(4) A ruling on a question of law when the defendant is convicted and appeals from the judgment;

(5) The sentence, on the ground that it is illegal;

(6) A judgment discharging a prisoner on habeas corpus (7) An order adjudicating a defendant insane under the Florida Rules of Criminal Procedure; or

(8) All other pretrial orders, except that it may not take more than one appeal under this subsection in any case.

Such appeal shall embody all assignments of error in each pretrial order that the state seeks to have reviewed. The state shall pay all costs of such appeal except for the defendant's attorney's fee.

A trial court's order granting a motion for judgment of acquittal is not among the rulings set out in the statute and thereby identified as appealable by the state in criminal cases. ⁴ In dismissing the state's appeal, the district court cited Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947), which held that the state's right of appeal in criminal cases is purely statutory. Thus the district court indicated that its dismissal of the appeal was based on the lack of statutory authority. The state argues, however, that it has a right to an appeal conferred not by statute, but by the Constitution of Florida.

The state relies on article V, section 4(b)(1), Florida Constitution, which provides in pertinent part that the district courts of appeal

shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts ... not directly appealable to the supreme court or a circuit court.

The state argues, in effect, that this provision confers upon any litigant the right to appeal a final judgment or order of a trial court. As authority for this proposition, the state relies on State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), review denied, 419 So.2d 1201 (Fla.1982). In that decision, the district court of appeal held the state could appeal an order of speedy-trial discharge in a juvenile case, even though "no statute or rule authorize[d] it," on the ground that article V, section 4(b)(1), conferred a constitutional right of appeal. Id. at 50.

The district court in W.A.M. relied upon Crownover v. Shannon, 170 So.2d 299 (Fla.1964), where this Court held that the constitutional provision pertaining to the jurisdiction of the district courts of appeal did indeed confer a right to appeal final judgments of trial courts. The district court in W.A.M. acknowledged that Crownover was decided under a previous version of the constitution and that the difference in language is "substantial," but simply concluded: "we do not believe such changes were intended to eliminate the right of appeal from final judgments." 412 So.2d at 50.

The argument of the state in support of its effort to overturn the decision of the district court in the instant case requires for its proper resolution some discussion of constitutional history. In 1956, article V of the Florida Constitution was substantially revised. Among the amendments was the provision creating the district courts of appeal. Prior to the establishment of the district courts of appeal in 1957, the Supreme Court of Florida had

appellate jurisdiction in all cases at law and in equity originating in Circuit Courts, and of appeals from the Circuit Courts in cases arising before the Judges of the County Courts in matters pertaining to their probate jurisdiction and in the management of the estates of infants, and in cases of conviction of felony in the criminal courts, and in all criminal cases originating in the circuit courts.

As can readily be seen, the Supreme Court was, under article V of the Constitution of 1885, prior to the 1956 revision, the single court of general appellate jurisdiction of major cases. ⁵

In Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947), this Court said, "The state's right to appeal is purely statutory, and is found in Sections 924.07 and 924.08, Fla.Stat. 1941...." Id. at 692, 32 So.2d at 578. Applying that principle, the Court held that an order of a county judge quashing an instrument charging a criminal offense could be appealed by the state to the circuit court. The Court's opinion shows that it was accepted as obvious that the existence of statutes defining the circumstances under which the state could appeal adverse rulings in criminal cases was to be controlling. Thus it is clear that before the 1956 amendment, the state's right of appeal was purely statutory. State v. Frear, 155 Fla. 479, 20 So.2d 481 (1945).

In 1956 article V was revised and the district courts of appeal were created. The appellate jurisdiction of those courts was defined in pertinent part as follows:

(3) Jurisdiction. Appeals from trial courts in each appellate district, and from final orders or decrees of county judge's courts pertaining to probate matters or to estates and interests of minors and incompetents, may be taken to the court of appeal of such district, as a matter of right, from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court.

The supreme court shall provide for expeditious and inexpensive procedure in appeals to the district courts of appeal, and may provide for review by such courts of interlocutory orders or decrees in matters reviewable by the district courts of appeal.

The district courts of appeal shall have such powers of direct review of administrative action as may be provided by law.

Art. V, § 5(3), Fla. Const. of 1885 (1956). The Crownover v. Shannon decision, relied upon by the district court in W.A.M. as discussed above, was an interpretation of the above-quoted language, specifically the indication that "appeals ... may be taken ... as a matter of right...." Although it had been opined that the definition of the new district courts' appellate jurisdiction was not intended to create any substantive rights not existing before, but only to re-allocate jurisdiction, see Opinion of the Attorney General 056-306 (October 16, 1956), this Court in Crownover said:

The right to appeal from the final decisions of trial courts to the Supreme Court and to the District Courts of Appeal has become a part of the Constitution and is no longer dependent on statutory authority or subject to be impaired or abridged by statutory law, but of course subject to rules promulgated by the Supreme Court regulating the practice and procedure.

Crownover v. Shannon, 170 So.2d at 301. It should be noted that Crownover was a civil case.

Crownover stands for the legal proposition that the 1956 amendment defining the appellate jurisdiction of the district courts, by using language different from that used to define appellate jurisdiction in article V prior to the 1956 amendment, had created a constitutional right of appeal that did not exist under prior law. If indeed the 1956 change of language was intended to have such effect, then it would follow that a subsequent substantial change in the constitutional language was similarly intended to alter the effect of the jurisdictional provisions.

Where there is a significant change in the language of the constitution, it is to be presumed that the change was intentional and was intended to have a different effect from the prior language. See, e.g., In re Advisory Opinion to the Governor, 112 So.2d 843 (Fla.1959); Swartz v....