State v. HarrisState v. Harris
In this case the state filed a petition for certiorari contending that the decision of the District Court of Appeal, Third District, reported as Harris v. State, Fla.App. 1961, 123 So.2d 752 is in direct conflict with numerous prior decisions of this Court and at least one decision of another district court of appeal.
We issued the writ and have heard argument of the parties.
The simple facts of this case are adequately reflected in the opinion of the district court and we will not restate them here.
The first question to be answered is whether the state has the right to seek certiorari from a decision of a district court in which that court in a criminal case rules adversely to the state and favorably to an accused
This question was raised by this Court. We requested the parties to file supplemental briefs on the question and they have done so.
There can be no doubt that this Court has the authority to entertain a petition for certiorari filed by the state in a criminal proceeding if the requisite conflict of decisions exists.
Therefore any limitation on the right of the state to apply to this Court for a petition for certiorari directed to a decision of a district court in a criminal proceeding must arise not out of any lack of authority in this Court to entertain such nor out of any constitutional restriction on the state, but rather out of some statutory limitation imposed on the state by the legislature.
We find no such limitation or restriction in the statutes of this state.
The defendant contends, first, that the constitutional provision authorizing this Court to review conflicting decisions of the district courts by certiorari is not selfenacting and must be effectuated by an implementing statute. This position is not tenable. See Gray v. Bryant, Fla. 1960, 125 So.2d 846, 851, and State ex rel. Attorney General v. Gleason, 1868, 12 Fla. 190, 209.
The defendant further contends that
Unfortunately for the defendant the plain words of
While the legislature cannot limit the constitutionally conferred authority of this Court to entertain petitions for certiorari, we have no doubt that it can restrict the state in seeking review by certiorari of adverse decisions in criminal cases just as it has limited its right to appeal through
In State v. Bateh, Fla. 1959, 110 So.2d 7, cert. den., 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69, this Court entertained a petition for certiorari filed by the state in criminal proceedings. In that case the state sought review of a decision of a district court of appeal.
Although this Court ultimately determined that the requisite conflict of decision did not exist in the Bateh case, it determined it had the right to entertain the petition saying at 110 So.2d p. 9, that:
“* * * We think the state‘s position is sound and that, therefore, this court, by virtue of
Sec. 4(2), Article V of the Constitution as amended in 1956, F.S.A. , is vested with jurisdiction to entertain, and is obligated to discuss and decide that phase of this controversy. * * *”
Prior to adoption of the present
It should be pointed out, however, that it does not appear that the right of the state to seek certiorari was contested in either the Bateh or the Andres case.
The district courts of appeal have entertained petitions by the state for common law certiorari in criminal proceedings and quashed judgments of circuit courts entered therein. State v. Atwell, Fla.App. 1957, 97 So.2d 125 and State v. Staley, Fla. App. 1957, 97 So.2d 147. This again indicates that the state has been considered to have the right to seek certiorari in criminal cases.
While it does not appear that the state‘s right to petition for certiorari was raised in the Staley case, the defendant in the Atwell case contended that the state had the right of appeal and therefore certiorari would not lie. The district court rejected the defendant‘s position stating that none of the instances set forth in
We therefore conclude that this Court has the authority to entertain a petition for certiorari by the state in a criminal proceeding, where the requisite conflict is shown, and that under existing law the state has the right to present such a petition.
We go then to a determination of the existence or not of a conflict in decisions.
As shown by the statement of facts in the opinion of the district court of appeal under attack, Elmer M. Harris, the defendant, was convicted of the offense of obtaining things of value in excess of $100.00 by means of a worthless check. This is the crime denounced by
In its opinion the district court among other things stated:
“* * * The check in question was for the sum of $338.48 and appears to have been given in part payment of an existing obligation. * * *”
This finding of fact by the district court is sufficient to justify its reversal of the conviction of the crime of obtaining things of value in exchange for a worthless check for the reason that payment of a pre-existing obligation by a worthless check does not constitute the obtaining of any thing of value in exchange therefor. The state does not contend that the reversal of the conviction was incorrect.
However, immediately following the statement above quoted the district court said:
“* * * The check for $338.48, upon which prosecution was predicated,
was placed for clearance by Johnson [the complaining witness] and was returned by the bank indicating that there was insufficient funds in appellant‘s account to pay the check. * * *”
The state contends that this last statement of fact by the district court clearly constitutes sufficient proof of a violation of
This should have been done, says the state, because the issuance of a worthless check without obtaining anything of value, as condemned by
The state points out that this Court has, pursuant to the dictates of
In view of the frequent application and firm establishment of this doctrine in the case law of this state it is necessary to cite only a few representative cases. Sheffield v. State, Fla. 1954, 73 So.2d 65; Arnold v. State, Fla. 1955, 83 So.2d 105; and Jalbert v. State, Fla. 1957, 95 So.2d 589.
In addition to these cases, all emanating from the Supreme Court of Florida, the District Court of Appeal, First District, in Helms v. State, Fla.App. 1961, 128 So.2d 756, a case almost identical to the one now under consideration, found that the evidence was not sufficient to support the charge in the information, which was laid under
If we here determine that the issuance of a worthless check, without receiving anything of value therefor, is a lesser offense necessarily included in the offense of obtaining something of value by means of a worthless check, it is apparent that there is a conflict between the decision here under assault and prior decisions of this Court and another district court of appeal on the same question of law.
We have no difficulty in arriving at the conclusion that the offense denounced by
As correctly stated by the district court in the opinion here under attack, both
It is apparent that the greater offense is to obtain something of value by means of a worthless check, and equally apparent that the making, uttering, etc. of such a check is a necessarily included lesser offense. In fact, the greater offense proscribed by
The district court of appeal in its opinion in this case stated that the check involved was given to the complaining witness in part payment of an existing obligation and that it was placed for clearance and returned by the bank for insufficient funds. As stated by this Court in Shargaa v. State, Fla. 1955, 84 So.2d 42 this was sufficient to prove the state‘s case under
Although defendant in his brief filed before us suggests that the exception or defense contained as a proviso in the last portion of both
In this case the defendant was not discharged in accordance with the mandate of the district court of appeal in that the trial court never issued its order discharging him. Our decision might be different if the defendant had actually been discharged.
In its opinion the district court indicated concern over the fact that it would be difficult to arrive at a proper penalty for a violation of
Thus, when this cause is remanded to the trial court with directions to enter judgment and sentence for violation of
For the reasons above expressed that portion of the opinion of the district court which ordered that defendant be discharged is quashed, and this cause is remanded to the district court with directions that it remand the cause to the trial court with directions to enter a judgment of conviction and a proper sentence for the offense condemned by
It is so ordered.
ROBERTS, C.J., and THOMAS, DREW and THORNAL, JJ., concur.