State v. Horne

• Decision Date: 25 January 1918
• Citation: 77 So. 672,75 Fla. 149
• Parties: STATE ex rel. HOPPS v. HORNE, Circuit Court Judge.
• Court: Florida Supreme Court

77 So. 672

75 Fla. 149

STATE ex rel. HOPPS v. HORNE, Circuit Court Judge.

Florida Supreme Court

January 25, 1918

Original application for mandamus by the State of Florida, on relation of John L. Hopps, against Mallory F. Horne, Judge of the Circuit Court, Third Judicial Circuit, of Florida. Peremptory writ awarded.

Syllabus by the Court

SYLLABUS

An appeal to the circuit court from a judgment of conviction in a court of a county judge should be made returnable as writs of error are returnable by statute (Gen. St. 1906, s 1698, as amended by Laws 1907, c. 5638 [Comp. Laws 1914, s 1698]) that is to say, it should be made 'returnable to a day either in term time or vacation more than thirty days and not more than ninety days from the date of the writ.'

The rule is that mandamus is the proper remedy to compel its exercise where a court refuses to exercise jurisdiction which it clearly possesses.

COUNSEL C. D. Blackwell, of Live Oak, for relator.

OPINION

WEST J.

This is an original proceeding by mandamus in this court.

By the alternative writ it is alleged in substance that the petitioner, John L. Hopps, was convicted in the court of the county judge of Suwannee county of a stated statutory offense and was thereupon sentenced by the judge of said court to pay a fine of a stated amount with costs; that he entered an appeal from such judgment to the circuit court of the Third judicial circuit of Florida in and for Suwannee county and caused to be made up and filed in said court a duly certified transcript of the record of said judgment, but the respondent as judge of said court 'did decline to hear and consider and did dismiss said appeal for no other reason except that the said appeal was not made returnable by express language to the first day of the term of the said circuit court held next after the entry of said appeal, and because said appeal stated therein that it was made returnable to the said circuit court on the 20th day of September, A. D. 1917, the said date being a day in vacation, the said respondent holding that the said appeal being returnable to a day in vacation and not being returnable to the first day of the next term of the circuit court that it is void and cannot give the circuit court jurisdiction.'

For answer the respondent says that upon motion made on behalf of the state to dismiss said appeal he, considering said motion well founded in view of certain designated statutes, did dismiss the appeal in said cause.

The relator now moves the court for a peremptory writ.

The question presented for decision is this: Should an appeal to the circuit court from a judgment of conviction in a court of a county judge be made returnable as writs of error are returnable by statute, or should such appeal be made returnable to the circuit court 'on or before the first day of its next term'?

From the answer of the respondent it appears that the confusion and uncertainty arises because of the provisions of sections 4053, 4054, and 4055, General Statutes of 1906, to the effect that an appeal from a judgment or sentence of conviction in the court of a county judge or a justice of the peace shall operate as a supersedeas if the appellant shall enter into a bond conditioned to appear before the circuit court at its next ensuing term, and that the judge of the court from which such appeal is taken shall make return of the proceedings had before him and shall file such return, together with all the papers pertaining to the case, in the circuit court on or before the first day of its next term.

Originally these sections were chapter 3717 of the Acts of 1887. This statute was designed to regulate appeals from justice of the peace courts to circuit courts in criminal cases. If, by inserting in section 4053 as it now appears in the General Statutes of 1906 the words 'court of a county judge,' it was intended to make the proceedings upon appeals from county judges' courts in such cases the same as in appeals in such cases from courts of justices of the peace the purpose is without avail, because under the Constitution of this state the proceedings in such appeals are different in character and cannot be made the same by statute. State ex rel. Nichols v. Bullock, 58 Fla. 534, 50 So. 418. We hold therefore that these sections, with reference to the return day, refer to appeals from justices of the peace courts which are tried de novo in the circuit court, and not to appeals from county judges' courts which are reviewed by the circuit court upon the transcript of the record brought up by the appeal and affirmed or reversed as error may or may not appear from such record.

By section 4043, General Statutes of 1906, it is provided that any person convicted in the...