40 So. 2d 214 | Fla. | 1949
Proceeding for a writ of prohibition by Guy Harvey and others, Supervisors of the Florida State Beverage Department, and James T. Vocelle, Director thereof, against E.B. Drake, Judge of the County Judge's Court of Walton County, Fla., to prevent the county judge from acting upon petitions by Howard Hamilton and others to quash certain search warrants and for an order for return of intoxicating liquors seized thereunder. From the judgment, petitioners appeal.
Judgment reversed, and cause remanded. This is an appeal from a judgment of the Circuit Court of Walton County, rendered by Judge D. Stuart Gillis, one of the two judges of the First Judicial Circuit, denying a petition for a writ of prohibition, filed by the appellants.
The petition for the writ alleged that on April 8, 1948, four search warrants were issued by Honorable L.L. Fabisinski, one of the judges of the Circuit Court of the First Judicial Circuit, authorizing the search of the several premises in Walton County therein described, which warrants were directed to all and singular the Sheriffs and Constables and the supervisors and agents of the Beverage Department of the State of Florida, and ordering the officers executing the same to make return of their doings thereunder to the judge issuing the warrants. That pursuant to the authority of the warrants, some of the petitioners did search each of the premises described and thereafter on the same day did make return on each of the warrants and filed the same in the office of the Clerk of the Circuit Court of Walton County on April 8, 1948; that by reason of the searches aforesaid, petitioners had possessed themselves of various quantities of intoxicating liquors which were found on the premises searched and which were kept thereon for the purpose of sale, and were possessed thereon, in violation of law. That thereafter each of the parties whose premises had been searched filed a "motion for judgment" and "order for the return of the property seized" in the County Judge's Court in Walton County. That the property sought to be returned by the several petitioners was that seized and possessed under and by virtue of the said search. That thereafter each of the same individual parties whose premises had been so searched filed a petition in the County Judge's Court of Walton County, each of which was entitled "Motion to quash the search warrant, and for order for return of the property seized thereunder," but none of them alleged that they were in lawful possession of the liquors at the time of the search and seizure.
The petition for writ of prohibition further alleged that a hearing was had before respondent E.B. Drake, as judge of the County Judge's Court of Walton County, on May 25, 1948, on the said several petitions, and at the conclusion the respondent county judge advised that he would enter judgment on each of the petitions, and assume jurisdiction and authority to act thereon, and that, unless petitioners for writ of prohibition or some of them did institute criminal proceedings as a result of the evidence obtained under the said searches, he would order that the property seized be turned over the sheriff of Walton County to await the further order of the County Judge's Court.
The petitioners for the writ of prohibition suggest that said County Judge's Court of Walton County, and the judge thereof, were without jurisdiction to act upon the several petitions or to enter judgment thereon, or to order delivery of the property seized, to the sheriff of Walton County, and that said County Judge's Court had no authority to enter any order regarding the disposition thereof, and was wholly without jurisdiction over the matters and things presented by the several petitions referred to; and closed with a prayer for the issuance of an alternative writ of prohibition directed to the said County Judge and each of the four individual respondents, commanding them to show cause at a time and place therein named why writ of prohibition should not issue and that meanwhile the County Judge be ordered to refrain from any further proceedings in said causes.
Alternative writ of prohibition, or rule nisi, was issued by Circuit Judge D. Stuart Gillis, one of the two Circuit Judges of the First Circuit, as prayed, and duly directed to and served upon the respondents, who filed a joint and several answer thereto.
This answer of the several respondents attached thereto photostatic copies of the several sworn applications for the issuance of the search warrants made to Circuit Judge Fabisinski, of said First Circuit, and also of the search warrants issued by him thereon, and the returns made by the applicants therefor. Each of the sworn applications for the warrants allege that a majority of the qualified electors of Walton County had voted against the sale of *216 intoxicating beverages in said county, and that, on a date a few days previous to the applications, the applicants had bought a bottle of described whisky at each of four certain places in Walton County, describing each place with particularity, being "the premises of persons unknown to affiant."
The answer to the alternative writ also contained copies of the several motions or petitions filed in the County Judge's Court by each of the four parties whose premises had been searched, in which the legality of the search warrants and the applications therefor and the searches made thereunder were attacked on various grounds, and praying that the County Judge's Court, "being the only court having jurisdiction," order the parties who had made the search to deposit the property taken with the Sheriff of Walton County to await an order for its disposition or return by the County Judge's Court, and that the property taken under the search warrants be returned to the person or persons from whom it was so illegally taken. One of the motions mistakenly alleged that the search warrant was illegal in that it was in violation of the State and Federal Constitutions.
One of the motions filed in the County Judge's Court attached as an exhibit a news article in the Pensacola Journal of April 10, 1948, entitled: "State Beverage Officials seize illegal whiskey in Walton County. Large liquor supplies valued at $2,000 confiscated from four establishments." This article was illustrated with a large picture of the "Walton Liquor Loot," and stated that "Hearing on the case will be held here before County Judge Edward B. Drake." The probable purpose of attaching this exhibit was to show that the intent of the officers who made the seizure was to submit the case to the County Judge, but the article was not signed, and was merely a news article from DeFuniak Springs.
The orders made by the County Judge on these several motions, as shown by the exhibits to the answer, were to the effect that the court had jurisdiction of the subject matter and the parties (evidently overlooking section
The cause came on to be heard before Circuit Judge D. Stuart Gillis, in Walton County, on June 7, 1948, and in his final judgment the Circuit Judge dismissed the rule nisi, and denied the writ of prohibition, and also ordered that the property obtained under the searches and seizures be held in status quo for ten days to allow the filing in the County Judge's Court of some affidavit or complaint under oath charging the defendants, against whom the searches and seizures were made, with some offense against the laws of Florida concerning and connected with property seized under the search warrants, and that thereafter the County Judge's Court may proceed as the law directs. It is from this judgment that this appeal was taken.
It will be noted that this final judgment did not hold the applications for, and the search warrants issued by Circuit Judge Fabisinski, and the returns made thereon, in any wise deficient. Nor do we. Of course circuit judges have authority to issue search warrants when they have jurisdiction "within the district where the place, vehicle or thing to be searched may be." Section
Section
And section
Section
It follows that any criminal prosecution that could be brought against either or all of these appellees for selling, or having possession with intent to sell, intoxicating liquors, would have had to be brought in the County Judge's Court of Walton County. However, none of these four appellees has been arrested, nor any warrants sworn out for their arrest.
But was it legally necessary for criminal prosecutions to be brought against these four individual appellees in the County Judge's Court before any further proceedings could be had regarding the disposition or destruction of the property seized upon their respective premises under the four search warrants issued by Judge Fabisinski? The learned Circuit Judge who entered the judgment denying the writ of prohibition evidently considered that this question should be answered in the affirmative, but, if so, we must disagree.
We turn now to the chapter of Florida Statutes, 1941, dealing with search warrants — chapter 933, F.S.A.
Section
In this case each of the search warrants was addressed "to all and singular the Sheriffs and Constables, Supervisors and agents of the Beverage Department of the State of Florida," and particularly described the premises described in each of the sworn applications, and commanded the search thereof for "illegal intoxicating beverages," and "to make return of your doings under this warrant to the undersigned within ten days from the date hereof, and you are likewise commanded in case you seize or take the property or materials mentioned in this warrant to safely keep the same until otherwise ordered by a court having jurisdiction thereof," etc. These warrants were issued by Circuit Judge Fabisinski in Escambia County authorizing searches to be made in Walton County, both of which counties were in Judge Fabisinski's Circuit, the First Circuit, and on that same day, after the searches and seizures had been made, the officers making them filed *218
the search warrants and their returns thereto, and inventories of the property taken, in the office of the Clerk of the Circuit Court of Walton County, in DeFuniak Springs, of which court Judge Fabisinski was one of the Circuit Judges. Whether duplicate returns were also made to Judge Fabisinski, in the county of his residence, about eighty miles to the West of the places searched, the record does not show, but the filing of the warrants and the returns made thereon in the office of the Clerk of the Circuit Court of Walton County, of which Court Judge Fabisinski was one of the two Circuit Judges, was tantamount to making the returns to or filing them with the Circuit Judge, as such, and also to the Circuit Court of Walton County, of which he and Honorable D. Stuart Gillis were the Circuit Judges. Section
Section
But the next paragraph of section
The county judge, the judge of the county judge's court of Walton County, was not the magistrate or judge before whom the search warrants were returned; and even if he had been, the "motions for judgment and for return of the property seized" were entirely insufficient under the provisions of section
For the reasons hereinabove stated, the judgment appealed from is reversed, and the cause remanded.
ADAMS, C.J., and TERRELL and CHAPMAN, JJ., concur. *219