Holland v. State

91 So. 379, 83 Fla. 400

• Court: Supreme Court of Florida
• Decided: March 22, 1922
• Status: Published

Opinions

Whitfield, J.

An information charging a felony was filed against Holland in the Court of Record for Escambia County. The court transferred the case to the Circuit Court in the adjoining county of Santa Rosa. The accused was tried in the Circuit Court upon the information and took writ of error to a judgment of conviction of the felony charged.

As to criminal cases the Court of Record for Escambia County has the same jurisdiction that a Criminal Court of Record in any other County has under the constitution. See Secs. 24, 25, 39, 40 and 41, Art. V.

Section 6107., Revised General Statutes of 1920, provides that: “In all criminal cases pending in any of the criminal courts of record- in any county in this State, changes of venue may be had and granted upon the same terms and for the same reasons and grounds and in same manner as is now provided by law for changes of venue in causes pending in the circuit courts. When any change of venue is granted in any cause in any such criminal, court of record, the venue shall be changed to the criminal court of record in some adjoining county, if there be one, but if there be no criminal court of record in any adjoining county, the venue shall be changed to the circuit court of some adjoining county; Provided, That the venue in cases of misdemeanor shall be changed to the county court of some adjoining county, if there’be a county court therein, and upon such change the original papers in the cause together with a certified copy of the order changing the venue shall forthwith be forwarded by the clerk of the court to which such venue is changed and shall preserve in his office certified copies of all such original papers so transmitted.”

Section 6058 Revised General Statutes of'1920, provides that: “No person shall be tried for felony in the Circuit Court except upon indictment found by the grand jury, but every misdemeanor of which the circuit court has jurisdiction may be tried upon indictment by the grand jury or upon information filed by the duly authorized prosecuting officer of the circuit court. In the- criminal courts of record all criminal cases shall be tried upon information filed by the County Solicitor, and in the county .courts upon information filed by the Prosecuting Attorney or upon indictment by the grand jury.” '

This latter statute conforms to .the constitution. Sec. 10, Declaration of Rights, and Sec. 28, Art. V. Const.

Section 10, Declaration of Rights qf the State Constitution, provides that “No person shall be tried for a capital crime or other felony, unless on presentment or indictment by a grand jury, except as is otherwise provided in this constitution.” The only exception in felony cases provided for in the constitution, other than impeachment and military trials is that all offenses triable in the Criminal Courts of Record “shall be prosecuted under oath, to be filed by the prosecuting attorney,” such courts having jurisdiction of all criminal cases not capital, which shall arise in the counties respectively. Secs. 25 and 28 Art. V.

As the quoted provision of Section 10, Declaration of Rights, is an organic command and not merely a declaration of a constitutional right that may be waived by the party having the right, neither the legislature nor the •courts can modify the organic command.

It does not appear that because a charge of felony is triable in the court of record on an information, that it may also be tried in a circuit court on an information in view of the constitution and of the specific requirement of the statute.

Section 6058, Revised General Statutes, 1920, expressly provides that “no person shall be tried for felony in the circuit court except upon indictment found by the grand .jury.” Section 6107 authorizes a change of venue from .a criminal court of record to the “circuit court of some adjoining county;” but this does not impliedly modify’the express provision of Section 6058 that mandatorily requires a trial for felony in the circuit court to be only upon indictment found by the grand jury.

The defendant may be indicted in the Circuit Court for Escambia County under Section 28, Art. V, of the Constitution, and the indictment may be transmitted to the Court of Record, and by it sent to the Circuit Court for Santa Rosa County under the order for a change of venue.

As the trial on the felony charge was had in the Circuit Court upon an information and not upon an indictment, the commands of the constitution and Section 6058 Revised General Statutes, were violated.

Reversed.

Browne, C.. J., and Taylor, J., concur. Ellis and West, J. J. dissent.