Morris, Parker, Smith v. State

May 5, 1933

Versions:148 So. 182

110 Fla. 95

Per CuRIAM.

These three cases involve applications for writs of certiorari to the Circuit Court of Okaloosa County to quash certain convictions had in the Court of the County Judge for violations of the laws against intoxicating liquors. Each of the convictions was duly affirmed on. appeal to the Circuit Court.

An opinion was written in each case by the Circuit Judge in affirming the judgments of the County Judge. One of the reasons given by the Judge оf the Circuit Court for refusing to reverse the County Judge on his rulings concerning the admissibility of evidence obtained under alleged invalid search wаrrants, was that the search warrants complained ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of, if insufficient, hаd not properly been made to appear of record on appeal, either in the bill of exceptions proper, or otherwise identified by such reference in the bill of exceptions, that the papers appearing in the transcript itself could be considered as having been incorporatеd into the bill of exceptions by reference.

Exhibits appeаring in a transcript of appeal, and consisting of matters in pais, may be considered as part of a *97 bill of exceptions in the case, only when such matters in pais copied in the transcript are properly referred to and idеntified by some appropriate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reference contained in the bill of exceptions. Ferlita v. Figorrata, 107 Fla. 489, 145 Sou. Rep. 607; Kidd v. City of Jacksonville, 99 Fla. 1023, 128 Sou. Rep. 31.

The overruling of thе assignments of error relating to the County Judge’s denial of defendant’s request for thirty minutes for argument, instead of twenty minutes as allowed, was not a departure, by the Circuit Court as a Court of Appeal, from the essential requirements' of law, because the record on aрpeal showed that when counsel applied for leavе to have thirty minutes allocated to defendant’s counsel for аrgument of his case, which request was .granted to the extent of allowing twenty minutes, counsel for defendant refused to make any argument at all and counsel for the prosecution thereupon waivеd its own right to make any argument. Had counsel for defendant used the twenty minutes' allotted to him, and then been stopped by the trial judge before he had been allowed a reasonable time to conclude the kind of argument he was endeavoring to make, the allеged error might then present such a denial of the right of argument as tо constitute a departure from the essential requirements of lаw, and not merely an erroneous or reversible ruling of the trial judge.

The Supreme Court on certiorari сannot quash a judgment merely because reversible error was сommitted. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The error complained of as ground for quashing a judgment оn certiorari, must be so flagrant as to constitute a departure from the essential requirements of the law with respect to procedural steps necessary to be taken or followed in order to administer justice according to controlling and indispensable rules of law. Des Rocher & Watkins Towing Co. *98 v. Third Nat. Bank, 106 Fla. 466, 143 Sou. Rep, 768; Vanderpool v. Spurell, 104 Fla. 347, 139 Sou. Rep. 892.

The common law writ of certiorari cannot be made to serve the purpose of an ordinary appellate proceeding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the nature of a writ of error. Brinson v. Tharin, 99 Fla. 676, 127 Sou. Rep. 313; Edwards v. Knight, 100 Fla. 1704, 132 Sou. Rep. 459. And upon an application for the writ of certiorari accompanied by a coрy of the entire record including the judgment to be quashed, the Supremе Court will refuse to issue the writ of certiorari applied for in such case if it plаinly appears from the records ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and briefs offered in support of the petition for certiorari, that the writ of certiorari, if issued, must inevitably be quashed upon the formal rеturn of the record sought to be brought up by it. General Motors Acceptance Corp. v. Judge Circuit Court, 102 Fla. 924, 136 Sou. Rep. 621.

Certiorari denied in each case.

Davis, C. J., and Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.