State v. Hickman, 7015

• Decision Date: 29 July 1966
• Docket Number: No. 7015,7015
• Parties: STATE of Florida, Appellant, v. Evelyn F. HICKMAN, Appellee.
• Court: Florida District Court of Appeals

Page 254

189 So.2d 254

STATE of Florida, Appellant, v. Evelyn F. HICKMAN, Appellee.

No. 7015.

District Court of Appeal of Florida, Second District.

July 29, 1966.

Rehearing Denied Sept. 2, 1966.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellant.

Robert E. Jagger, Public Defender, Robert E. Pyle, Asst. Public Defender, Clearwater, for appellee.

PIERCE, Judge.

The State of Florida was appealed from an order of the Circuit Court for Pinellas County, entered on February 4, 1966, quashing an information ¹ filed in that Court by the State Attorney charging Evelyn F. Hickman, hereinafter called defendant, with the offense of obtaining merchandise of the value of $84.12 from the Clearwater Lerner Shops by means of a worthless check in said amount given by the defendant to said Lerner Shops.

The information was filed on December 2, 1965, alleging the offense to have occurred on March 8th, 1963 (obviously more than two years previous), but averring that on March 18th, 1963, warrant was issued by Justice of the Peace Richard C. Davis charging defendant with the same offense alleged in the information and that said warrant was delivered on the following day, March 19, 1963, to the Sheriff of Pinellas County, Florida.

To the information, defendant filed motion to quash, ² alleging that defendant was arrested on September 30, 1965 upon said warrant by the Sheriff and had been held in custody since said arrest. But the motion further averred that 'the warrant upon which the information in this cause is based, is fatally defective in that said warrant was not signed by the Justice of Peace aforesaid, but was, in fact, stamped by someone with the facsimile of the said committing Magistrate, and this fails to comply with the provisions of Chapter 901.03(6) of the Florida Statutes (F.S.A.), which requires that the warrant be Signed by the Magistrate.' The motion contended this made the warrant 'fatally defective, the Statute of Limitations was not tolled thereby,' and therefore 'the Court thus lost jurisdiction to prosecute said Defendant on said charge.' On February 4, 1966 the Circuit Judge entered order which stated Inter alia:

'It is the finding of this Court that an official's use of a facsimile signature, per se, is not invalid and that the Warrant, in this instance, is presumed to be valid, having the appearance of being signed by the proper official. It is the further finding of this Court that although an official may adopt any mark or stamp as his official signature, same must be impressed on said document by said official in order to comply with the provisions of Section 901.03(6). It is the opinion of this Court that said Section contains no authorization for said official to delegate to any other person authority to impress his signature on a Warrant.

'It appearing from the testimony of the Honorable Richard C. Davis that he does not know whether he impressed the facsimile stamp upon the Warrant and that it could have been placed thereon by his criminal clerk, upon his authorization, it is the finding of this Court that the presumption of the validity of the Warrant is overcome and said Warrant is hereby found invalid.'

The order thereupon granted the defendant's motion to quash, and this is the order which the State has appealed to this Court. By assignments of error, the State contends that the warrant issued on March 18, 1963, 'was properly * * * issued by the appropriate * * * authority and was not in fact deficient * * *' and that the defendant 'failed to overcome the presumption of validity that attaches to an Order issued from a proper Court * * * with appropriate jurisdiction * * *'; that therefore the Court erred in granting the motion to quash the information.

At the hearing upon the motion to quash, the Justice of the Peace who originally issued the warrant, Honorable Richard C. Davis, testified. He said that he could not remember distinctly having issued this particular warrant some three years prior to his testimony, but he could remember having issued many of them in this particular form; that generally his Chief Clerk would prepare the warrant as well as the affidavit and work sheets and have them arranged on his desk at the close of a business day, at which time she would take a rubber stamp facsimile of his signature and attach it to the documents; that occasionally he would authorize his Chief Clerk to affix his facsimile signature thereto 'after having discussed the matter fully' with her; that there was no case where she or anyone else other than himself attached his signature to such instruments without his 'specific prior authorization and knowledge'; that his Chief Clerk alone had sole possession of his facsimile signature or authority to affix it to warrants, and then only after prior discussion with, and authorization from, him as Judge; that specifically on 'bad check charges' he never gave telephone authorizations, but as to these he would always handle personally himself because such cases were made by one 'Johnny McMullen of the Sheriff's office.'

The Circuit Judge ruled that the warrant was presumed to be valid and the burden was on the defendant 'to show the facsimile signature was not placed thereon by the authorized official.' Judge Davis was the only witness testifying and was called by the State, although the Circuit Judge, after the hearing, ruled that the State produced Judge Davis as a witness Only after the Circuit Judge had at first erroneously ruled the burden was on the State to show a valid warrant, but that when he reversed his own ruling on the point he then considered Judge Davis' testimony as being 'the testimony of the defendant' (thus making an anomaly of a complexity).

We hold (1) that the warrant in question was not invalid, and was certainly not a nullity, and (2) it was at least sufficient as Evidenced intention on the part of the State to toll the Statute of Limitations.

A--Validity of the Warrant. Section 901.03 Florida Statutes, F.S.A. prescribes what such arrest warrants shall contain, in the following language:

'901.03 Form and contents of warrant

The warrant of arrest shall:

(1) Be in writing and in the name of the State of Florida;

(2) Set forth substantially the nature of the offense;

(3) Command that the person against whom the complaint was made be arrested and brought before the magistrate issuing the warrant or, if he be absent or unable to act, before the nearest or most accessible magistrate in the same county;

(4) Specify the name of the person to be arrested, or if his name is unknown to the magistrate, designate such person by any name or description by which he can be identified with reasonable certainty;

(5) State the date when issued and the county and justice district where issued;

(6) Be signed by the magistrate with the title of his office; and

(7) In all offenses bailable as of right be indorsed with the amount of bail and the return day on the back of the warrant.' (Emphasis supplied).

The record here contains a photostat copy of the affidavit and warrant, showing that on March 18th, 1963, John T. McMullen signed the affidavit under oath before said Justice of the Peace to the effect that on March 8th, 1963 the defendant had, with intent to defraud, uttered and delivered to Lerner Shops a check in the amount of $84.12 drawn on the Bank of Clearwater, securing therefor money, property or other things of value, without having sufficient funds with said bank to pay the check. The signature of the Justice of the Peace appears both upon the affidavit and also the warrant, with his official jurat on both instruments. The Sheriff's stamp on the warrant shows it was received in that office on March 19, 1963.

An apparently identical warrant, both as to form and content, was before this Court in Rosengarten v. State, Fla.App.1965, 171 So.2d 591, and was relied upon in that case as having tolled the Statute of Limitations. Referring to the sufficiency of the warrant, this Court in Rosengarten said:

'The record shows the (alleged offense) occurred between the 1st and 4th day of April, 1961. The information was filed May 17, 1963 and alleged that a warrant was issued by a Justice of the Peace in Pinellas County on October 16, 1962 and was delivered to the sheriff of that county October 22, 1962. This warrant appears in the record as State's Exhibit #18 and is so marked.

'In the light of the foregoing we consider the defendant's contentions that the State failed to prove that this prosecution began within two years of the date of the alleged crime. State's Exhibit #18 is the warrant alleged in the information. It is dated October 16, 1962 and is directed to the sheriff or any constable of the county. It bears a time stamp 'received 62 Oct 22 P M 4 21 Pinellas County Sheriff Don Genung' and it contains the endorsement of the Justice of the Peace to the effect that on November 2, 1962 preliminary hearing was waived and the defendant was bound over to Circuit Court under $1500 bond. We find that the warrant and the endorsements thereon are sufficient to prove that this prosecution was commenced within two (2) years from the date of the alleged crime. For the purposes of the statute of limitations, § 932.05, Fla.Stats., F.S.A., a prosecution has been commenced when a warrant has been issued and placed in the hands of a proper officer for execution. Dubbs v. Lehman, 1930, 100 Fla. 799, 130 So. 36, and State v. Emanuel, Fla.App.1963, 153 So.2d 839.'

The law is that a signature may be legally made not only by the signer himself, but by and through someone duly authorized by him. 80 C.J.S. Signatures § 2a, page 1287. In 80 C.J.S. Signatures § 7, page 1292, it is said:

'In the absence of a statute prescribing the method of affixing a signature, it may be affixed in many different ways. It may be written by hand, and, generally, in the absence of a statute otherwise providing, it may...