Tart v. State
| Decision Date | 26 June 1928 |
| Citation | 117 So. 698,96 Fla. 77 |
| Parties | TART SAME v. STATE. SAME v. JONES, Judge, et al. |
| Court | Florida Supreme Court |
En Banc.
Error to Court of Record, Escambia County; C. Moreno Jones, Judge.
Criminal prosecution by the State against E. E. Tart. From an order striking pleas of autrefois acquit, defendant separately brings error and petitions for certiorari directed to Hon. C Moreno Jones, Judge of the Court of Record of Escambia County, and others. Writ of error dismissed, and petition for certiorari denied.
Syllabus by the Court
Certiorari will not lie to review correctness of action striking defendant's pleas in bar. In a criminal prosecution, the trial court upon motion of the state struck defendant's pleas in bar interposed to the information. Held, that certiorari will not lie to review the correctness of the court's action.
Writ of error will not lie prior to final judgment to review order granting state's motion to strike defendant's pleas in bar. Writ of error will not lie prior to final judgment to review the order of the trial court in a criminal cause granting the state's motion to strike defendant's pleas in bar to the information.
Price, Price, Neeley & Kehoe, of Miami, for plaintiff in error.
Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
An information filed in the court of record of Escambia county on September 12, 1927, charged in the first count that Viola Edwards and E. E. Tart, both as principals, committed the offense of manslaughter by performing an abortion upon a woman therein named thereby producing the death of the latter. In the second count Viola Edwards is charged with the same offense as principal, and Tart is charged as accessory. The information is apparently based upon section 5042, Rev Gen. Stats. 1920.
The defendants were tried upon said information and found not guilty on September 23, 1927.
Thereafter another information was filed charging the said Viola Edwards and E. E. Tart with manslaughter, both being charged as principals in the first count, Viola Edwards being charged as principal and E. E. Tart as accessory in the second count, and both being charged as accessories in the third count, the principal in the third count being charged to be a person unknown. The second information also charges the offense to have been committed by performing an abortion upon a woman of the same name as in the first information, and who was alleged to have been pregnant with a quick child, thereby producing the death of the child.
To the second information E. E. Tart interposed pleas of autrefois acquit, based upon his trial and acquittal under the first information, in which pleas it is alleged, in substance, that the two informations charge the same offense, the only difference being that the first information charges that the abortion produced the death of the mother, while the second charges that it produced the death of the unborn child.
Upon motion of the state the pleas of autrefois acquit were stricken.
A writ of error to the order striking said pleas was sued out by Tart. In his brief, however, it is conceded that the order striking the pleas is not a final judgment to which a writ of error will lie, and the writ of error is therefore abandoned.
Upon abandoning his writ of error, Tart filed a petition in this court to obtain a review by writ of certiorari of the order striking the pleas.
Certiorari cannot be employed as a substitute for a writ of error. In order to justify the issuance of a writ of certiorari, it must ordinarily appear from the face of the record of an inferior court or tribunal that in rendering its final judgment it has acted in usurpation of a jurisdiction it did not possess, or that there has been a palpable abuse of power resulting in a miscarriage of justice, or that the court or tribunal has not proceeded according to the essential requirements of law, as distinguished from the commission of a mere error of judgment; and, in addition, it must appear that there is no plain, speedy, and adequate remedy by appeal or writ of error to correct such action. Benton v. State, 74 Fla. 30, 76 So. 341; Haile v. Gardner, 82 Fla. 355, 91 So. 376. See, also, Hunt v. Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am. St. Rep. 214; Basnet v. Jacksonville, 18 Fla. 523; Edgerton v. Green Cove Springs, 18 Fla. 528; American Ry. Express Co. v. Weatherford, 84 Fla. 264, 93 So. 740; 11 C.J. 113.
Mere error in the determination of nonfundamental procedural or other questions properly submitted to and regularly determined by a trial court will not ordinarily justify the exercise of the supervisory jurisdiction of this court by certiorari, when such errors result...
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Girten v. Bouvier, 3807
...the obtaining of review by certiorari, although it may not be as convenient. 5 Fla.Jur., Certiorari, section 9, page 492; Tart v. State, 1928, 96 Fla. 77, 117 So. 698. A succinct yet comprehensive summary upon the subject of reviewability of errors and irregularities may be found in 5 Fla.J......
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Hubacher v. Landry
...state, certiorari review does not lie under such circumstances. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541, 545 (1942); Tart v. State, 96 Fla. 77, 117 So. 698 (1928); Ford Motor Co. v. Nelson, 355 So.2d 158 (Fla. 4th DCA 1978); Johnson v. General Motors Corp., 350 So.2d 1119 (Fla. 4th DCA 1......
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State v. Lozano
...The "irreparable injury" test must be satisfied in a certiorari proceeding that arises from a criminal case, as well. See Tart v. State, 96 Fla. 77, 117 So. 698 (1928); Mingle v. State, 429 So.2d 850 (Fla. 4th DCA 1983); Smith v. State, 187 So.2d 61 (Fla. 2d DCA 1966). The Third District's ......
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Smith v. State
...might have been committed by the trial judge can be properly reviewed in the appeal pending in the case. In the case of Tart v. State, 1928, 96 Fla. 77, 117 So. 698, our Supreme Court held that certiorari would not lie to review correctness of a trial court's order striking the defendant's ......