State Ex Rel. Oliver v. Moorhead

10 So. 2d 576, 151 Fla. 845, 1942 Fla. LEXIS 1275

• Court: Supreme Court of Florida
• Decided: November 17, 1942
• Status: Published

Opinion

BUFORD, J.:

Appeal brings for review judgment in habeas corpus proceedings remanding petitioner to the custody of the sheriff.

It was, and is, the contention of petitioner that he was unlawfully convicted in the County Judge’s Court of Marion County in that he was convicted on a charge made in an affidavit filed against him in said court and not upon a charge made in an indictment or information as provided in Sec. 79 of Chapter 19554, Acts of 1939.

As the Legislature has made no provision for the appointment or election of a prosecuting attorney in County Judge’s Court in Marion County with authority to file informations, the provisions of Sec. 79, supra, can not be held applicable to prosecutions in such court. To hold otherwise would be to suspend the jurisdiction of that court to entertain criminal prosecutions. As to prosecutions in the justices of the peace and county judge’s court, the provisions of Section 6128 R.G.S., 8433 C.G.L. to 6131 R.G.S., 8436 C.G.L., and Section 6145 R.G.S., 8450 C.G.L. remain in full force and effect. This is true because of two conditions, the first of which is, there is no other method provided for prosecuting criminal cases in such courts and the second is that the revision, Florida Statutes, was enacted and adopted as the statute law of this State subsequent to the passage of Chapter 19554. In this revision all the provisions of the statutes, supra, were re-enacted.

It, therefore, follows that both provisions must be read and considered in paria materia and each given effect. See Howarth v. City of DeLand, 117 Fla. 692, 158 So. 294, and cases there cited.

Judgment affirmed.

So ordered.

BROWN, C. J., WHITFIELD and ADAMS, JJ., concurring.