State v. Merritt
| Decision Date | 14 July 1923 |
| Parties | STATE ex rel. STILLMAN v. MERRITT, Sheriff. |
| Court | Florida Supreme Court |
Rehearing Granted Nov. 13, 1923.
Judgment Reaffirmed Jan. 28, 1924.
En Banc.Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by the State, on the relation of Jack Stillman, against R. E Merritt, as Sheriff of Duval County, for a writ of habeas corpus. From an order discharging the writ and remanding petitioner to custody, he brings error.
Affirmed.
(Syllabus by Ellis, J.)
On Application for Rehearing.
On Rehearing.
COUNSEL A. G. Hartridge and R. E. Stillman, both of Jacksonville, for plaintiff in error.
C. M Cooper and George C. Bedell, both of Jacksonville, amici curiae, on rehearing.
Rivers Buford, Atty. Gen., and M. C. McIntosh, Asst. Atty. Gen., for defendant in error.
Jack Stillman was confined in the county jail by the sheriff of Duval county under the authority of a writ of commitment, which was presumably issued by a court of competent jurisdiction, committing Stillman to the custody of the sheriff to await the action of the criminal court of record for Duval county upon a charge valid in form and substance of the violation of a criminal law.
The petitioner applied to the judges of the circuit court for Duval county for a writ of habeas corpus alleging that he was confined and restrained of his liberty in the county jail of Duval county, by virtue of a certain commitment, by the sheriff of Duval county; that a certified copy of the commitment was attached to the petition and marked exhibit A, and by special reference prayed to be made a part of the petition. It may be noted here that no copy of any commitment was attached to the petition, so that the record does not disclose the nature and character of the crime with which the petitioner was charged.
The petition also alleges that at a preliminary hearing before the county judge 'certain testimony was adduced upon which the commitment was based,' that a 'copy of said testimony' was attached and marked exhibit B, and prayed to be made a part of the petition, The copy of the testimony was not attached to the petition.
The petition alleges that petitioner 'is informed by counsel and verily believes that the testimony referred to did not disclose sufficiently to find that probable cause existed to bind your petitioner over to the action of the criminal court of record for Duval county, Florida, and that the action of the said Hon. John W. Du Bose, county judge, in forming such conclusions, was erroneous.'
A writ of habeas corpus was issued by Hon. Daniel A. Simmons, circuit judge, upon the petition, returnable February 16, 1923, at 10 o'clock in the forenoon.
The cause coming on to be heard 'upon the writ of habeas corpus, the return thereto and the evidence adduced at the trial,' the court ordered the petitioner to be remanded to the custody of the sheriff. The court made an order allowing a writ of error to be taken by the petitioner.
The record shows no return made by the sheriff to the writ of habeas corpus.
The transcript of the record contains a bill of exceptions which recites that at a term of the circuit court held at Jacksonville on February 16, 1923, 'sitting in chambers,' the case of Jack Stillman, plaintiff, and R. E. Merritt, as sheriff of Duval County, Florida, defendant, came on to be heard. The certificate of the judge recites that on the 24th day of February, A. D. 1923, at the term aforesaid, the court rendered judgment in favor of the defendant and against the petitioner, and that on the 25th day of April, A. D. 1923, the 'petitioner' proposed 'this his bill of exceptions' to the opinions and decisions of the judge, and requested him to sign the same, which he did on the 25th day of April, A. D. 1923. There is a certificate also that the bill of exceptions contains all the testimony adduced before the judge.
The court takes judicial knowledge that the fall term of the circuit court for Duval county began on the fourth Monday in November, 1922, and ended before the last Monday in March, 1923; that the spring term began the third Monday in May, 1923. The bill of exceptions also recites that this case was heard by the judge in chambers on the 16th day of February, 1923, and that the order remanding the petitioner was made on the 24th day of February, 1923. The bill of exceptions was presented for settlement on the 24th day of April, 1923, but the fall term of the circuit court for Duval county expired by limitation of law on or before the last Monday in March.
It follows that the term of the court at which this case was heard had expired when the bill of exceptions was presented for settlement and signed by the judge.
There is no order in the record nor recital in the bill of exceptions showing that extra time was allowed after the adjournment of court for the settlement and signing of a bill of exceptions; therefore what occurred in pais at the hearing of this cause is not properly nor authoritatively nor legally certified to this court. See Washington v. State, 48 Fla. 62, 37 So. 573; Lamb v. State, 50 Fla. 106, 38 So. 906; Hainlin v. Budge, 56 Fla. 342, 47 So. 825; Bardin v. L'Engle, 13 Fla. 571; Webster v. Barnett, 17 Fla. 272; Potsdamer v. State of Florida, 17 Fla. 895; Bush v. State, 21 Fla. 569; Myrick v. Merritt, 21 Fla. 799; Rehfield v. Moore, 76 Fla. 378, 80 So. 52; Montgomery v. State, 54 Fla. 73, 45 So. 813; Circuit Court Law Rule No. 97.
The presumption obtains that the judgment of the court was correct and entered in accordance with the essential requirements of the law. See Bailey v. Clark, 6 Fla. 516; Davis v. Horne, 57 Fla. 396, 49 So. 505; Colson v. State, 51 Fla. 19, 40 So. 183; Lewis v. State, 55 Fla. 54, 45 So. 998; Fails v. State, 60 Fla. 8, 53 So. 612; Ann. Cas. 1912B, 1146, note; Bowen v. Darby, 14 Fla. 202; Stinson v. State, 76 Fla. 421, 80 So. 506.
No question has been presented or assigned for determination upon any matter other than should be contained in an authentically prepared and certified bill of exceptions, the judgment of the court should therefore be affirmed. See Washington v. State, supra.
So the judgment of the court is affirmed.
On Application for Rehearing.
The final order herein was affirmed upon the theory that the bill of exceptions was not presented for authentication by the trial judge during the term of the court in which the trial was had, and no special order was shown for presenting a bill of exceptions after the term, no error in the record proper appearing. It now appears that the bill of expections was authenticated by the trial judge before an adjournment of the term in which the trial was had.
In Barnes v. State, 68 Fla. 291, 67 So. 131, it is held that 'under statutory direction that terms of a circuit court shall begin on certain Mondays in the several counties, the term in one county does not ipso facto end the Saturday at midnight preceding the Monday fixed for the beginning of the term in another county,' and that
In cases where it has been presumed that the circuit court for one county had been adjourned prior to the convening of the circuit court in another county of the circuit, there was only one circuit judge in the circuit, and the records did not show special action taken with reference to adjournment of the court in one county and convening in another county of the circuit. This case was tried in Duval county, which is in the Fourth judicial circuit.
In Duval county there were two resident circuit judges when this case was determined, February 24, 1923, and it does not appear that the circuit court for Duval county had been adjourned prior to the third Monday in April, 1923, the date fixed by the statute as 'the time for holding' the spring term of the circuit court for Clay county in the same judicial circuit.' Sections 3041, 3045, Rev. Gen. Stats. 1920.
The bill of exceptions herein was presented and authenticated on April 24, 1923, without a showing of time allowed for such presentation after adjournment; but, as there were two circuit judges in Duval county, there is no presumption that the fall term of the circuit court for Duval county which under the statute began on the fourth Monday in November, was duly adjourned before the third Monday in April, the time fixed by the statute for holding a term of the circuit court in Clay county in the same judicial circuit, since the circuit judge for Duval county provided for by section 42, art. 5, of the state Constitution, was resident in Duval county and could not sit in Clay county except by executive assignment, while it was the duty of the judge of the Fourth judicial circuit and not of the circuit judge for Duval county to hold court in Clay county. Besides, the bill of exceptions states that the case was tried 'at a term of the circuit court of the Fourth judicial circuit of the state of Florida for the county of Duval.' This indicates that the fall term of the circuit court for Duval county had not been adjourned, and the bill of exceptions was properly acted on by the circuit judge of the county.
Rehearing granted.
On Rehearing.
The petition for writ of habeas corpus presented to the circuit judges to the circuit court for Duval county alleges:
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