Wilson v. Renfroe

• Court: United States State Supreme Court of Florida
• Writing for the Court: THORNAL; DREW, C. J., O'CONNELL and BUFORD, JJ., and LOPEZ; HOBSON; TERRELL
• Citation: 91 So.2d 857
• Parties: W. H. WILSON, Appellant, v. Lawrence W. RENFROE, as County Judge, County Judge's Court, Leon County, Florida, Appellee.
• Decision Date: 07 December 1956

Page 857

91 So.2d 857 W. H. WILSON, Appellant,
v.
Lawrence W. RENFROE, as County Judge, County Judge's Court, Leon County, Florida, Appellee. Supreme Court of Florida, Division A. Dec. 7, 1956.
Rehearing Denied Feb. 1, 1957.

Page 858

Ausley & Ausley, D. Fred McMullen, Atkinson & Williams and George W. Atkinson, Tallahassee, for appellant.

Richard W. Ervin, Atty. Gen., Jos. P. Manners, Asst. Atty. Gen., and W. J. Oven, Jr., Tallahassee, for appellee.

THORNAL, Justice.

Appellant Wilson, the petitioner below, sought a writ of prohibition against the respondent Renfroe and now requests reversal of the final judgment of the Circuit Judge denying a rule absolute and dismissing the proceeding.

We are called upon to decide whether a 'motion to dismiss' a criminal proceeding filed by a Prosecuting Attorney is in this instance tantamount to a nolle prosequi of the case. We must also decide whether the record in this case justifies the issuance of a rule absolute because of the alleged bias and prejudice of the trial judge in the criminal proceeding.

The Prosecuting Attorney of Leon County filed in the County Judge's Court of said county an information in two counts charging appellant Wilson with (1) driving while intoxicated, and (2) reckless driving. Subsequently the Prosecuting Attorney filed in the case a document entitled 'motion to dismiss'. This document read as follows:

'The undersigned represents that the above cause was transferred to the County Court for a jury trial, and that the investigating officer for the Police Department, Captain Bob Maige, has advised that the evidence is insufficient to sustain the charges and has requested that the case be dismissed.

'The undersigned, having investigated this cause on behalf of the State finds that there is insufficient evidence to carry the burden of proof.

'Wherefore, the undersigned moves that said cause be dismissed at the cost of the defendant in view of the fact that the case was transferred from the City Court for a jury trial.'

The County Judge thereupon on his own motion set the matter for a hearing to take

Page 859

testimony of various witnesses to satisfy himself as to whether the motion of the Prosecuting Attorney should be granted or denied. At an extensive hearing witnesses were heard. The accused was not present either in person or by counsel. At the conclusion of the hearing the Judge denied the motion to dismiss the charge of driving while intoxicated, but granted the motion to dimiss the reckless driving charge. He also directed that two additional charges be filed: one, for following a motor vehicle too closely, and another, for engaging in the use of indecent and vulgar language in a public place.

Shortly after this hearing the appellant filed his motion, supported by two affidavits, asking the County Judge to disqualify himself because of his alleged bias and prejudice as reflected by the denial of the motion to dismiss, the holding of a hearing thereon and his conclusion that additional charges should be filed. The Judge found the motion and accompanying affidavits to be legally insufficient. Thereupon appellant filed his suggestion for a writ of prohibition in the Circuit Court. After hearing the matter on the record, the Circuit Judge denied the rule absolute and dismissed the rule nisi. Reversal of the order of the Circuit Judge is now sought.

The appellant contends that the motion to dismiss filed by the Prosecuting Attorney was tantamount to a nolle prosequi and that the County Judge had no authority to deny the motion. He also contends that his proceeding to disqualify the County Judge was legally sufficient and that his motion for disqualification should have been granted.

Appellee contends that the Prosecuting Attorney did not file a nolle prosequi. On the contrary, it is asserted that he merely filed a motion to dismiss addressed to the discretion of the trial judge and that the judge properly exercised his discretion. He further contends that the motion and supporting affidavits seeking his disqualification were legally insufficient.

There can be no doubt that under the common law the Presecuting Attorney controlled the entry of a nolle prosequi, up to the time that the jury is sworn to try the cause. The words 'nolle prosequi' are a Latin expression which translated literally mean 'to be unwilling to prosecute'. Under the common law of England prosecution in criminal cases were controlled by the Attorney General and he alone had the exclusive discretion to decide whether prosecution should be discontinued prior to the inception of jeopardy. In the absence of statute, the common law continues to be in force in most of the states of this country. Florida has adopted no statute on the subject. 14 Am.Jur., Criminal Law, Sec. 296. et seq; State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 69 A.L.R. 223; State ex rel. Butler v. Moise, 48 La.Ann. 109, 18 So....