State v. Robles

• Decision Date: 07 October 1932
• Citation: 106 Fla. 940,143 So. 438
• Parties: STATE ex rel. DRANE v. ROBLES, Judge.
• Court: Florida Supreme Court

143 So. 438

106 Fla. 940

STATE ex rel. DRANE v. ROBLES, Judge.

Florida Supreme Court

October 7, 1932

Original mandamus proceeding by the State, on the relation of H. J Drane, against F. M. Robles, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Hillsborough County.

Peremptory writ granted.

BROWN J., dissenting in part.

COUNSEL Dickenson & Lake, of Tampa, and Ed R. Bentley of Lakeland, for relator.

S Whitehurst's Sons and Hugh Hale, all of Brooksville, B. G. Langston and A. R. Carver, both of Lakeland, Zewadski & Pierce, of Tampa, Don Register, of Winter Haven, Wade Harrison, of Bradenton, and Jackson, Dupree & Cone, of Tampa, for the motion.

OPINION

PER CURIAM.

The court affirmed the judgment ordering a peremptory writ. Mandate was issued requiring it to be enforced. After the mandate was lodged int he court below, the circuit judge ordered the peremptory writ to be amended and a portion of it quashed. The relator applied here for a writ of mandamus against the circuit judge to require him to comply with the mandate as issued. Respondent judge made return, setting up that in his opinion the execution of the peremptory writ would be futile and asking permission to quash a portion of the same.

A majority of the court are of the opinion that the motion to recall the mandate should not be granted because a recall of the mandate without a reversal of the judgment of affirmance heretofore entered by this court would be useless and futile. See Brown v. State, 29 Fla. 494, 11 So. 181. The denial of the motion to recall the mandate necessarily results in a granting of a motion for a peremptory writ to the circuit judge to require compliance with the mandate.

BUFORD, C.J., and WHITFIELD, TERRELL, and DAVIS, JJ., concur.

BROWN J., dissents.

CONCURRING

BUFORD, C.J. (concurring specially).

The history of the procedure followed in this case is stated in the majority opinion.

While it appears to me that provisions should exist under which the court could, in a case like this, pursue the course which has been suggested by the request of the circuit judge and by the motion of the appellant which is, that an order be entered by this court allowing the court below to require the amending of the alternative writ of mandamus so as to eliminate from such writ the requirement that the relator recount, retabulate, and return the votes cast in certain precincts where there is no proof that any invalid ballots have been cast, I find that under such conditions as obtain in this case the court is without authority to recall its mandate and make such order. See Brown v. State, 29 Fla. 494, 11 So. 181, 182; Lovett v. State, 29 Fla. 384, 11 So. 176, 182, 16 L. R. A. 313. This case is ruled by the opinion and judgment in the case of Brown v. State, supra, in which the court said:

'It is evident that the judgment of this court which it is sought to have opened was rendered without irregularity of procedure, and upon the true record of the cause as it then stood in the criminal court of record, and that our mandate had been filed in that court before any motion was made there to amend the record upon which the trial or review of the case was had here. There is not only not any error of law in our decision, but our exercise of jurisdiction has been entirely regular, and is not the result of either mistake, surprise, imposition, misrepresentation, or fraud. The record of that court, as it was and as all the parties knew it to be, was regularly brought here, and the cause duly heard. The state was content to let the record stand thus in the lower court, and to risk a trial upon it here. It was entirely competent for the state to have had the record of that tribunal, if it did not speak the truth, amended while the proceedings were pending here, and by bringing the amended record here they could have arrested our action on the original record before we rendered judgment. Stephens v. Bradley, 23 Fla. 393, 2 So. 667; Freem. Judgm. (4th Ed.) § 73; Dunbar v. Hitchcock, 3 Maule & S. 591; Richardson v. Mellish, 3 Bing. 334; Richardson v. Mellish, 3 Bing. 346; Mellish v. Richardson, 7 Barn. & C. 819; Pickwood v. Wright, 1 H. Bl. 643; Freel v. State, 21 Ark. 212; Binns v. State, 35 Ark. 118; Exchange National Bank v. Allen, 68 Mo. 474; Dow v. Whitman, 36 Ala. 604; Ladiga Sawmill Co. v. Smith, 78 Ala. 108; Neff v. Edwards, 81 Ala. 248, 2 So. 88; Rew v. Barker, 2 Cow. [N. Y.] 408 ; Sparrow v. Strong, 2 Nev. 362. And, according to some of the authorities, it could have secured a vacation of our judgment even after its rendition, if the amendment had been made below before the actual entry of such judgment. Mellish v. Richardson, 7 Barn. & C. 819. Instead of pursuing this course, the state has rested its case upon the record as it was made; and not only has our decision gone against it, but the cause has, by the issue of the remittitur and its lodgment in that court, passed from us. In the face of these facts, it cannot be said that the cause is still in this court, or that there is any ground for restoring it to our docket. On the contrary, it falls within that class of the cases reviewed in the case of Lovett v. State, 29 Fla. 384, 11 So. 176 (just decided) in which the jurisdiction of the appellate court is held to have been lost, and the cause cannot be recalled.'

This is true because the instant case was regularly brought to this court by proper transcript of the record, and it was admitted at the bar of this court that at the time the judgment of the lower court was rendered such judgment was the proper judgment and was warranted by the record.

It is further admitted at the bar of this court that the judgment of this court as entered upon the record before it was the proper and correct judgment to have been entered upon such record. But it is contended that, by reason of the enunciation of the law of this state, as stated in the opinion affirming the judgment of the lower court, it now appears that a compliance with the judgment of the lower court, which became the judgment of this court upon its affirmance, in so far as the judgment applies to the ballots cast in certain precincts where there is no proof of invalid ballots havig been cast, but only proof of regular and irregular valid ballots having been cast, could...