State v. Mobley, 2377
| Decision Date | 11 August 1961 |
| Docket Number | No. 2377,2377 |
| Citation | 133 So.2d 334 |
| Parties | STATE of Florida, Petitioner, v. Bennie Wesley MOBLEY, Respondent. |
| Court | Florida District Court of Appeals |
Richard W. Ervin, Atty. Gen., David U. Tumin, Asst. Atty. Gen., Thomas M. Coker, Jr., County Sol. of Broward County, Fort Lauderdale, and James W. Whitney, Asst. County Sol. of Broward County, Fort Lauderdale, for petitioner.
Hal S. Ives, of Ives & Davis, West Palm Beach, for respondent.
Defendant in trial court, respondent here, charged under an amended information with the misdemeanor offense of unlawfully having in his possession a carcass or a portion of a carcass of an alligator in violation of a rule or regulation of the Game and Fresh Water Fish Commission of Florida, was tried by a jury in the Court of Record of Broward County, Florida. The state did not offer into evidence a certified copy of the rule or regulation mentioned; and at the conclusion of the state's case, the defendant moved for a directed verdict because of the insufficiency of the evidence, and because of the failure of the state to rpove, or offer in evidence, competent proof of any rule or regulation of the Game and Fresh Water Fish Commission of the State of Florida, declaring it to be unlawful to kill, or to have in one's possession an alligator, alligator's carcass, or hide, in Broward County, Florida. The court did, however, have before it a copy of the Rules and Regulations of the Game and Fresh Water Fish Commission which had been duly approved and adopted on July 10, 1958, certified as true under date of August 15, 1958, signed by the director of the commission, and stamped with the seal of the commission. To this, the court referred and took judicial notice, and the motion was denied. Defendant was found guilty and was sentenced to serve 30 days in the county jail.
Appeal was taken by defendant to the circuit court of that county, with the result that the judgment of conviction with sentence was reversed for new trial. The circuit court stated, 'The Courts of this state will not take judicial notice of rules and regulations of state regulatory boards,' and thereupon ruled that the failure to introduce into evidence a certified copy of the rule or regulation of the commission which the defendant was charged with violating was fatal to the prosecution.
In petitioning this court for writ of certiorari, the State of Florida urges that the circuit court, sitting as an appellate court, reversed the judgment of conviction because the trial court had taken judicial notice of the rules and regulations referred to, although section 372.021, Florida Statutes, permits a trial court to do so.
The Game and Fresh Water Fish Commission is a constitutional state agency and is empowered to promulgate rules and regulations by authority of section 30, Article IV, Constitution of the State of Florida, F.S.A., and as implemented by section 372.021, Florida Statutes, F.S.A. The statutory provisions relate to the procedure outlined for certification, which includes filing with the secretary of state and each county judge of the state, and receipt into evidence of the rules and regulations of the commission. The promulgation and filing procedures are stated to be directory and not mandatory, however, and the statute also provides as to such rules and regulations that they:
'* * * shall be received as evidence in all courts of this state without further authentication; provided, nothing herein shall be construed as preventing or prohibiting the courts from taking judicial knowledge thereof.' (Emphasis supplied.)
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State v. G.P.
...the district courts have often reviewed decisions of the lower court sitting in its appellate capacity. See, e.g., State v. Mobley, 133 So.2d 334 (Fla. 2d DCA 1961), quashed on other grounds, 143 So.2d 821 (Fla.1962); State v. Katz, 108 So.2d 60 (Fla. 3d DCA 1959), State v. Staley, 97 So.2d......
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Mobley v. State
...not inconsistent herewith. ROBERTS, C. J., and TERRELL, DREW, THORNAL and O'CONNELL, JJ., concur. THOMAS, J., dissents. 1 133 So.2d 334 (Fla.App.1961).2 75 Fla. 575, 79 So. 205 (1918).3 Florida Constitution, Article IV, section 30, F.S.A.4 Florida Statutes, section 372.021 (1961), F.S.A.5 F......
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Poirier v. Division of Health, State Dept. of Health and Rehabilitative Services, BB-252
...take judicial notice of an officially published rule found in the Florida Administrative Code, respondent relies upon State v. Mobley, 133 So.2d 334 (Fla.2nd DCA 1961). However, the Supreme Court, in reversing that decision (see Mobley v. State, 143 So.2d 821 (Fla.1962)), "We think it essen......