State v. Katz

• Decision Date: 08 January 1959
• Docket Number: No. 58-327,58-327
• Parties: STATE of Florida, Petitioner, v. Harry KATZ, Respondent.
• Court: Florida District Court of Appeals

Page 60

108 So.2d 60

STATE of Florida, Petitioner, v. Harry KATZ, Respondent.

No. 58-327.

District Court of Appeal of Florida, Third District.

Jan. 8, 1959.

Rehearing Denied Jan. 30, 1959.

Richard W. Ervin, Atty. Gen., Irving B. Levenson, Asst. Atty. Gen., Richard E. Gerstein, State Atty., and Glenn C. Mincer, Asst. State Atty., Miami, for petitioner.

Dan Chappell and Jay M. Lurie, Miami, for respondent.

CARROLL, CHAS., Chief Judge.

The respondent Harry Katz was informed against for bookmaking, a misdemeanor. He was tried and convicted in the court of crimes, a court of record in Dade County. On his appeal to the circuit court, that court reversed the judgment of conviction. Invoking certiorari, the state seeks reversal of that order of the circuit court.

The constitution confers upon the circuit courts 'final appellate jurisdiction in all civil and criminal cases arising in the county court, or before county judges' courts, of all misdemeanors tried in criminal courts of record, and of all cases arising in municipal courts, small claims courts, and courts of justices of the peace.' (Emphasis supplied.) Const. of Fla. Art. V. § 6(3), 26 F.S.A.

Due regard for the plain language of the constitution prevents this appellate court from entertaining a second appeal. The common law writ of certiorari was not meant for and may not be diverted to such purpose. See Townsend v. State, Fla.App.1957, 97 So.2d 712, 713; 5 Fla.Jur., Certiorari, § 25. On such certiorari we must restrict our consideration within those limits which have been well defined by the Supreme Court.

In Benton v. State, 74 Fla. 30, 76 So. 341, 342, it was held that as to those cases where the constitution afforded final appellate jurisdiction in the circuit courts, certiorari to the Supreme Court could not be used for a second appeal, nor to produce the merits for review as on appeal; that in such circumstances the writ may not be used to review and affirm or reverse the order of the circuit court made in the exercise of its granted (final) appellate jurisdiction, but calls for an order which 'must either quash the proceeding of the judge of the circuit court, or quash the certiorari which brings it here.'

Further, in the Benton case, the court held as follows (76 So. at page 343):

'Under the Constitution of this state, the supervisory power of the Supreme Court on a certiorari to a circuit court as an appellate court is restricted to an examination into the external validity of the proceedings had in the circuit court, and cannot be exercised to review the judgment of that court as to its intrinsic correctness, where the record discloses that a cause of action existed; the court of original jurisdiction had jurisdiction of parties and subject-matter, and the appellate court acquired jurisdiction according to the forms prescribed by law. See State ex rel. Matranga v. Judge, 42 La.Ann. 1089, 8 So. 277, 10 L.R.A. 248.'

In American Ry. Express Co. v. Weatherford, 84 Fla. 264, 93 So. 740, 741, 742, the Supreme Court, in an opinion by Mr. Justice Whitfield, concisely defined the nature and scope of the common law writ of certiorari, as follows:

'Certiorari is a common-law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law. Seaboard Air Line R. Co. v. Ray, 52 Fla. 634, 42 So. 714.

'Generally stated, a writ of certiorari may, in the discretion of the court, be issued where it is duly made to appear, at least prima facie, that the record of a lower court shows that the proceedings in a cause have violated established principles of law, or that the adjudication in the cause is a palpable miscarriage of justice, and that the result is a substantial injury to the petitioner, who has no other remedy, and seeks a writ of certiorari.'

In Brinson v. Tharin, 99 Fla. 696, 127 So. 313, 316, dealing with the office and scope of a writ of certiorari directed to an order of the circuit court acting as an appellate court, the Supreme Court said:

'The writ, confined to its legitimate scope, may issue within the court's discretion at any time to correct the procedure of courts wherein they have not observed those requirements of the law which are deemed to be essential to the administration of justice. It is important, however, that the court should not broaden or extend the scope of the writ.

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