State v. Harris, 31209

Decision Date10 January 1962
Docket NumberNo. 31209,31209
Citation91 A.L.R.2d 1088,136 So.2d 633
PartiesSTATE of Florida, Petitioner, v. Elmer M. HARRIS, Respondent.
CourtFlorida Supreme Court

Richard W. Ervin, Atty. Gen., and Reeves Bowen and Joseph Nesbitt, Asst. Attys. Gen., for petitioner.

Stephens & Hames, Miami, for respondent.

O'CONNELL, Justice.

In this case the state filed a petition for certiorari contending that the decision of the District Court of Appeal, Third District, reported as Harris v. State, Fla.App.1961, 123 So.2d 752 is in direct conflict with numerous prior decisions of this Court and at least one decision of another district court of appeal.

We issued the writ and have heard argument of the parties.

The simple facts of this case are adequately reflected in the opinion of the district court and we will not restate them here.

The first question to be answered is whether the state has the right to seek certiorari from a decision of a district court in which that court in a criminal case rules adversely to the state and favorably to an accused

This question was raised by this Court. We requested the parties to file supplemental briefs on the question and they have done so.

There can be no doubt that this Court has the authority to entertain a petition for certiorari filed by the state in a criminal proceeding if the requisite conflict of decisions exists. Article V, Section 4(2), Florida Constitution, F.S.A., empowers this Court to review by certiorari 'any decision' of a district court of appeal which is in conflict with a prior decision of this Court or of another district court of appeal. There is nothing in the constitution which limits the authority of this Court to entertain such petitions by the state in criminal proceedings, nor is the right of the state to file such a petition in a criminal proceeding limited by this or any other provision of the constitution.

Therefore any limitation on the right of the state to apply to this Court for a petition for certiorari directed to a decision of a district court in a criminal proceeding must arise not out of any lack of authority in this Court to entertain such nor out of any constitutional restriction on the state, but rather out of some statutory limitation imposed on the state by the legislature.

We find no such limitation or restriction in the statutes of this state.

The defendant contends, first, that the constitutional provision authorizing this Court to review conflicting decisions of the district courts by certiorari is not self-enacting and must be effectuated by an implementing statute. This position is not tenable. See Gray v. Bryant, Fla.1960, 125 So.2d 846, 851, and State ex rel. Attorney General v. Gleason, 1868, 12 Fla. 190, 209.

The defendant further contends that Sec. 924.07, F.S.A., which limits the right of the state to appeal from decisions adverse to it in criminal proceedings, also limits the right of the state to take certiorari.

Unfortunately for the defendant the plain words of Sec. 924.07, F.S.A., do not support his contention. The statute deals only with direct appeals in criminal proceedings and clearly does not and was not intended to proscribe the authority of the state to seek either common law certiorari now exercised by the district courts or constitutional certiorari of the variety now exercised by this Court.

While the legislature cannot limit the constitutionally conferred authority of this Court to entertain petitions for certiorari, we have no doubt that it can restrict the state in seeking review by certiorari of adverse decisions in criminal cases just as it has limited its right to appeal through Sec. 924.07. But the fact is that as of now it has not done so and until it does the state has the same right to petition this Court for certiorari in criminal proceedings as does the defendant.

In State v. Bateh, Fla.1959, 110 So.2d 7, cert. den., 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69, this Court entertained a petition for certiorari filed by the state in criminal proceedings. In that case the state sought review of a decision of a district court of appeal.

Although this Court ultimately determined that the requisite conflict of decision did not exist in the Bateh case, it determined it had the right to entertain the petition saying at 110 So.2d p. 9, that:

'* * * We think the state's position is sound and that, therefore, this court, by virtue of Sec. 4(2), Article V of the Constitution as amended in 1956, F.S.A., is vested with jurisdiction to entertain, and is obligated to discuss and decide that phase of this controversy. * * *'

Prior to adoption of the present Article V, Fla.Const., this Court entertained a petition by the state for common law certiorari in a criminal proceeding in State v. Andres, 1941, 148 Fla. 742, 5 So.2d 7, which indicates that the state was considered to have the right to petition for certiorari in criminal cases.

It should be pointed out, however, that it does not appear that the right of the state to seek certiorari was contested in either the Bateh or the Andres case.

The district courts of appeal have entertained petitions by the state for common law certiorari in criminal proceedings and quashed judgments of circuit courts entered therein. State v. Atwell, Fla.App.1957, 97 So.2d 125 and State v. Staley, Fla.App.1957, 97 So.2d 147. This again indicates that the state has been considered to have the right to seek certiorari in criminal cases.

While it does not appear that the state's right to petition for certiorari was raised in the Staley case, the defendant in the Atwell case contended that the state had the right of appeal and therefore certiorari would not lie. The district court rejected the defendant's position stating that none of the instances set forth in Sec. 924.07 were applicable and therefore the state could not have appealed. This statement is consistent with our decision here, i. e. that Sec. 924.07 limits the state in appeals but not in certiorari proceedings.

We therefore conclude that this Court has the authority to entertain a petition for certiorari by the state in a criminal proceeding, where the requisite conflict is shown, and that under existing law the state has the right to present such a petition.

We go then to a determination of the existence or not of a conflict in decisions.

As shown by the statement of facts in the opinion of the district court of appeal under attack, Elmer M. Harris, the defendant, was convicted of the offense of obtaining things of value in excess of $100.00 by means of a worthless check. This is the crime denounced by Sec. 832.05(3), F.S.A.

In its opinion the district court among other things stated:

'* * * The check in question was for the sum of $338.48 and appears to have been given in part payment of an existing obligation. * * *'

This finding of fact by the district court is sufficient to justify its reversal of the conviction of the crime of obtaining things of value in exchange for a worthless check for the reason that payment of a pre-existing obligation by a worthless check does not constitute the obtaining of any thing of value in exchange therefor. The state does not contend that the reversal of the conviction was incorrect.

However, immediately following the statement above quoted the district court said:

'* * * The check for $338.48, upon which prosecution was predicated was placed for clearance by Johnson [the complaining witness] and was returned by the bank indicating that there was insufficient funds in appellant's account to pay the check. * * *'

The state contends that this last statement of fact by the district court clearly constitutes sufficient proof of a violation of Sec. 832.05(2), F.S.A., which statute in short condemns the issuance of a worthless check without obtaining anything of value in exchange therefor, and that therefore the district court should not have directed that the trial court discharge the defendant but rather should have directed that the trial court enter judgment and sentence for a violation of Sec. 832.05(2), F.S.A.

This should have been done, says the state, because the issuance of a worthless check without obtaining anything of value, as condemned by Sec. 832.05(2), is a lesser included offense of the crime of issuing a worthless check in exchange for something of value, as condemned by Sec. 832.05(3); and because Sec. 924.34, F.S.A. enacted in 1939, requires that where an appellate court, when considering a criminal case where the offense is divided into degrees or is one which necessarily includes lesser offenses, determines that the...

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27 cases
  • State v. Pettis
    • United States
    • Florida Supreme Court
    • January 21, 1988
    ...courts of appeal to review nonfinal orders in criminal cases by certiorari was recognized in dictum by this Court in State v. Harris, 136 So.2d 633 (Fla.1962). Several years later in State v. Smith the question was directly presented. In that case, the Court upheld the district court's reas......
  • Pressley v. Wainwright
    • United States
    • Florida Supreme Court
    • January 25, 1979
    ...we have adopted can operate other than as a suggestive procedural guideline. Our timeliness rule is already evenhanded. See State v. Harris, 136 So.2d 633 (Fla.1962). It is, of course, self-evident that our appellate rules provide procedural due process and do not in that sense to any degre......
  • State v. Sinclair
    • United States
    • Maryland Court of Appeals
    • May 8, 1975
    ...480 (1931) (where the check was given in payment for services rendered to the defendant in selling certain advertisements); State v. Harris, 136 So.2d 633 (Fla.1962) (where the check was given in part payment of an existing obligation); Berry v. State, 153 Ga. 169, 111 S.E. 669 (1922) (wher......
  • State v. Lafave
    • United States
    • Florida District Court of Appeals
    • October 9, 2012
    ...so, Justice Shaw stated that G.P. and Jones “directly conflict [ed] with decades of well-established case law,” including State v. Harris, 136 So.2d 633 (Fla.1962). In Harris, the Florida Supreme Court was asked “whether the state has the right to seek certiorari from a decision of a distri......
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