State v. Morey

• Decision Date: 01 December 1976
• Docket Number: No. 76--1484,76--1484
• Citation: 339 So.2d 1139
• Parties: STATE of Florida, Petitioner, v. Lynn MOREY and King's Gate Campers Holiday, Inc., Respondents.
• Court: Florida District Court of Appeals

Page 1139

339 So.2d 1139

STATE of Florida, Petitioner, v. Lynn MOREY and King's Gate Campers Holiday, Inc., Respondents.

No. 76--1484.

District Court of Appeal of Florida, Second District.

Dec. 1, 1976.

John J. Blair, State Atty., William J. Lambert, Jr., Asst. State Atty., and Linda Albritton, Legal Intern, Sarasota, for petitioner.

Raymond A. Graham, Sarasota, for respondents.

SCHEB, Judge.

In its appellate capacity, the circuit court directed its writ of certiorari to the county court in Sarasota County in respect to misdemeanor charges pending in that court. While the writ permitted the state to proceed to trial on a 200-count information charging the respondents herein, Morey and King's Gate, with violating Sarasota County Ordinance No. 74--48, which prohibits removal of trees without a permit, it nevertheless, stipulated that '. . . if there is a conviction and a sentence thereon, there shall be only one sentence for each convicted defendant and for only a single violation of the alleged ordinance.' The state now petitions this court for certiorari. We hold the circuit court erred in prematurely determining the charges pending against Morey and King's Gate would constitute a single transaction for sentencing purposes. We grant the state's petition for certiorari.

On June 18 1976, Morey and King's Gate were charged by a 200-count information which alleged their removal of trees was 'not in compliance with the previously issued permit.' The 200 trees were all allegedly removed on the same day and in connection with the same development. Morey and King's Gate, as defendants in county court, moved that court for dismissal of the information on the grounds that the ordinance was unconstitutionally discriminatory. When the county court denied that motion, they petitioned the circuit court for a writ of certiorari contending the county's ordinance was unconstitutional and that the petitioners (Morey and King's Gate) were to be subjected to a lengthy trial which would result in an enormous cost and serve no useful purpose. Further, they contended the evidence taken before the county court on their motion established they had acted properly under the permit issued to them by the County of Sarasota.

At the hearing in the circuit court, the state contended that the court should not rule on the constitutional question in advance of trial because appeal would be an adequate remedy if any convictions resulted. The circuit judge responded by asking the state whether the single transaction rule would apply to any sentence which could be imposed. The state explained that each count of the information carried the prospect of a one-year sentence and five hundred dollar fine, and that the judge of the county court would not be bound in any sentence he might impose by the single transaction rule. At this point the circuit judge stated that he would not rule on any constitutional issues, but ruled that if there was a conviction and sentence, there could be only one sentence imposed on each of the defendants.

After the circuit court entered its order holding that only a single sentence could be imposed, the state sought a writ of certiorari from this court contending the circuit court, in so ruling, exceeded its jurisdiction and departed from the essential requirements of the law.

We make no ruling on whether the single transaction rule should apply to the facts of this case. The single transaction rule first comes into play at time of sentence, State v. Peavey, 326 So.2d 461 (Fla.2d DCA 1975), since by its nature its applicability is dependent upon the factual context of the offenses. If an incorrect ruling on its applicability prejudices either defendant, an appeal to the circuit court will be an adequate remedy. The scope of certiorari must be confined to a limited review of the proceedings of the inferior jurisdiction whose actions are challenged. It is an original action in the sense that the subject matter of suit or proceedings which it brings before the court are not there reinvestigated, tried and determined upon the merits generally as upon an...