Warren v. State, F-423

• Decision Date: 20 April 1965
• Docket Number: No. F-423,F-423
• Citation: 174 So.2d 429
• Parties: Henry C. WARREN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 429

174 So.2d 429

Henry C. WARREN, Appellant, v. STATE of Florida, Appellee.

No. F-423.

District Court of Appeal of Florida, First District.

April 20, 1965.

Rehearing Denied May 14, 1965.

Philip D. Beall, Pensacola, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant was charged by information filed in the Court of Record of Escambia County with receiving or aiding in the concealment of stolen property, knowing the same to have been stolen. Following conviction by the jury the trial judge withheld the adjudication of guilt and placed appellant on probation for a period of five years. It is from the order of probation that this appeal is taken in which appellant raises only two points for our consideration, to wit: (1) the sufficiency of the evidence to support the verdict of guilty rendered by the jury; (2) whether the trial court erroneously abused its discretion in refusing to grant appellant's original and amended motion for new trial, the latter of which was predicated upon newly discovered evidence.

Before proceeding to a consideration of the merits of the appeal presented by the points mentioned above, we deem it necessary to first determine whether the order appealed is one of which this Court has jurisdiction to review by appeal.

The order appealed was entered pursuant to F.S. Section 948.01, F.S.A., which provides as follows:

'(1) Any court of the state having original jurisdiction of criminal actions, where the defendant in a criminal case has been found guilty by the verdict of a jury or has entered a plea of guilty or a plea of nolo contendere or has been found guilty by the court trying the case without a jury, except for an offense punishable by death, may at a time to be determined by the court, either with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of such defendant. * * *

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'(3) If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt and in either case stay and withhold the imposition of sentence upon such defendant, and shall place him upon probation under the suprvision and control of the parole commission for the duration of such probation. And the said commission shall thereupon and thereafter, during the continuance of such probation, have the supervision and control of the defendant. * * *'

F.S. Section 924.06, F.S.A., dealing with appeals in criminal cases, provides:

'An appeal may be taken by the defendant only from:

'(1) A final judgment of conviction when probation has not been granted under chapter 948.

'(2) An order granting probation under chapter 948, such appeal to be in the same manner and with the same scope and same effect as if judgment of conviction had been entered and appealed from.

'(3) An order revoking probation under chapter 948; in case of such an appeal, only the proceedings after the order of probation may be considered or reviewed.

'(4) A sentence, on the ground that it is excessive or illegal. * * *'

The fact that this appeal is clearly authorized by the provisions of the foregoing statutes is not determinative of the question with which we are concerned. This Court is one of limited jurisdiction. It possesses only such jurisdiction as is conferred upon it by the Constitution of the State, which jurisdiction may be neither diminished nor enlarged by an act of the legislature. Any statute purporting to either add to or diminish the jurisdiction of this Court would be null and void.

The Constitution of Florida specifies that district courts of appeal shall have jurisdiction to review by appeal only final judgments or decrees rendered by trial courts and final orders or decrees of county judge's courts pertaining to probate matters or to the estates and interests of minors and incompetents. ¹ The Constitution further provides, however, that the Supreme Court may provide for review by district courts of appeal of interlocutory orders or decrees in matters reviewable by those courts. ²

In the case now reviewed there has been no final judgment of guilt rendered against appellant by the trial court, so it necessarily follows that the order appealed must be classified as interlocutory in character. Before this Court may exercise jurisdiction in this case, we must find in the rules of procedure promulgated by the Supreme Court pursuant to the above-mentioned section of the State Constitution a rule authorizing review by interlocutory appeal of the order herein questioned.

Part VI of the Florida Appellate Rules relates to criminal appeals. The applicability section of Part VI provides that appeals in criminal cases to the district courts of appeal shall be prosecuted in accordance with Part VI thereof and, except as therein...