State v. Smith, No. 41762

CourtUnited States State Supreme Court of Florida
Writing for the CourtADKINS; The only ground for the motion asserted by the defendants in the case Sub judice was that the State's case depended in whole or in part upon the identification of defendants by eye witnesses. Even assuming, that in some rare instance; ROBERTS
Citation260 So.2d 489
Decision Date29 March 1972
Docket NumberNo. 41762
PartiesSTATE of Florida, Appellant, v. David Charles SMITH, Jr. and Alphonso Figgers, Appellees.

Page 489

260 So.2d 489
STATE of Florida, Appellant,
v.
David Charles SMITH, Jr. and Alphonso Figgers, Appellees.
No. 41762.
Supreme Court of Florida.
March 29, 1972.
Rehearing Denied April 27, 1972.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellant.

Wilfred C. Varn, and E. C. Deeno Kitchen, Tallahassee, for appellees.

ON REHEARING GRANTED AND ORIGINAL OPINION WITHDRAWN

ADKINS, Justice.

This is a direct appeal from the decision of the District Court of Appeal, First District (State v. Smith and Figgers, 254 So.2d 402, which held that Fla.Stat. § 924.07(8), F.S.A., authorizing appeals by the State from pretrial orders is unconstitutional on the ground that the jurisdiction of the District Court to entertain such interlocutory appeals may be granted only by rule of this Court.

Although requested, the Court dispenses with oral argument. Florida Appellate Rules, Rule 3.10(e), 32 F.S.A.

Upon motion of the defendants, who were indicted for first degree murder, the trial

Page 490

court entered a pretrial order that witnesses, who may be used by the State for identification of the persons involved in the perpetration of the crime alleged to have been committed by defendants, shall be examined for visual acuity by a specified doctor at a time and place to be specified by him prior to the trial. By interlocutory appeal to the District Court of Appeal, First District, the State sought a reversal of this order. The District Court of Appeal held that it lacked jurisdiction to entertain the appeal and referred to the following portion of Fla.Const., art. V, § 5(3), F.S.A.:

'Jurisdiction. Appeals from trial courts in each appellate district, . . . may be taken to the court of appeal of such district, as a matter of right, from all final judgments . . . except those from which appeals may be taken direct to the supreme court or to a circuit court.' . . .

'The supreme court . . . may provide for review by sukch courts of interlocutory orders or decrees in matters reviewable by the district courts of appeal.'

The District Court of Appeal held the statute unconstitutional, reasoning that it was ineffective unless a rule of this Court 'breathes life' into the legislative act. We agree and adopt the following portion of the opinion rendered by the District Court of Appeal:

'The instant appeal sought by the State is not from a final judgment, and is not one appealable directly to the Supreme Court or to a Circuit Court. Jurisdiction of this Court to entertain interlocutory appeals from pretrial orders is dependent upon the Supreme Court providing for such review. Has the Supreme Court so provided? We conclude that it has not.

'The sole provision promulgated by the Supreme Court for appellant review of pretrial orders in criminal cases is found in Rule 6.3 subd. b. 32 F.S.A. 1

This Rule breathes life into a legislative Act 2 which purports to permit appellate

review of a pretrial order which quashes a search warrant, suppresses evidence obtained by search and seizure, or suppresses a confession or admission made by a defendant.

'The legislature has sought to provide appellate review of other...

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80 practice notes
  • State v. McIntosh, No. 86,386.
    • United States
    • United States State Supreme Court of Kansas
    • December 6, 2002
    ...to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law.' State v. Smith, 260 So.2d 489, 491 (Fla. 1972). Nor does there exist in Tennessee a statutory right to a compelled physical examination of a witness by a criminal defendant,......
  • State v. Pettis, No. 69097
    • United States
    • United States State Supreme Court of Florida
    • January 21, 1988
    ...The orders involved in Pettis and Wilson were nonfinal orders. The review of nonfinal orders is controlled by court rule. State v. Smith, 260 So.2d 489 (Fla.1972). State appeals from certain nonfinal orders are authorized by Florida Rule of Appellate Procedure 9.140(c)(1)(B). With respect t......
  • Amendments to the Florida Rules of Appellate Procedure, Nos. 87134
    • United States
    • United States State Supreme Court of Florida
    • November 22, 1996
    ...jurisdiction of circuit courts to entertain Page 805 interlocutory appeals of pretrial orders from the county courts. See State v. Smith, 260 So.2d 489 (Fla.1972). No provision of this rule is intended to conflict with a defendant's constitutional right not to be placed twice in jeopardy, a......
  • State v. Barone
    • United States
    • Supreme Court of Tennessee
    • March 1, 1993
    ...to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law." State v. Smith, 260 So.2d 489, 491 (Fla.1972). Nor does there exist in Tennessee a statutory right to a compelled physical examination of a witness by a criminal defendant, ......
  • Request a trial to view additional results
80 cases
  • State v. McIntosh, No. 86,386.
    • United States
    • United States State Supreme Court of Kansas
    • December 6, 2002
    ...to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law.' State v. Smith, 260 So.2d 489, 491 (Fla. 1972). Nor does there exist in Tennessee a statutory right to a compelled physical examination of a witness by a criminal defendant,......
  • State v. Pettis, No. 69097
    • United States
    • United States State Supreme Court of Florida
    • January 21, 1988
    ...The orders involved in Pettis and Wilson were nonfinal orders. The review of nonfinal orders is controlled by court rule. State v. Smith, 260 So.2d 489 (Fla.1972). State appeals from certain nonfinal orders are authorized by Florida Rule of Appellate Procedure 9.140(c)(1)(B). With respect t......
  • Amendments to the Florida Rules of Appellate Procedure, Nos. 87134
    • United States
    • United States State Supreme Court of Florida
    • November 22, 1996
    ...jurisdiction of circuit courts to entertain Page 805 interlocutory appeals of pretrial orders from the county courts. See State v. Smith, 260 So.2d 489 (Fla.1972). No provision of this rule is intended to conflict with a defendant's constitutional right not to be placed twice in jeopardy, a......
  • State v. Barone
    • United States
    • Supreme Court of Tennessee
    • March 1, 1993
    ...to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law." State v. Smith, 260 So.2d 489, 491 (Fla.1972). Nor does there exist in Tennessee a statutory right to a compelled physical examination of a witness by a criminal defendant, ......
  • Request a trial to view additional results

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