TOM STEPHENS, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a larceny conviction because the appellate record was improperly prepared, preventing review of the evidence and jury instructions. The court emphasized the need for strict adherence to procedural rules for criminal appeals.
No, the appellate court cannot review the sufficiency of evidence or refused jury instructions if the record does not comply with the rules for criminal appeals, specifically regarding the certification of evidence and inclusion of all charges.
“The transcript presented to this court has been made up and certified under the rules pertaining- to civil causes under the option allowed the plaintiff in erro.r in criminal causes and having so elected he must be held to.a compliance with those rules as it is not permissible to confuse the two methods in the same transcript.”
Establishes the procedural defect in the appeal based on the improper preparation of the transcript.
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Join FLexlaw to unlock all legal intelligenceTom Stephens was convicted of larceny of domestic animals and sentenced to two years in prison. He appealed, assigning error to the sufficiency of the…
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Cockrell, J.
— Tom Stephens was convicted in the circuit court for Gadsden county of the crime of larceny of domestic animals and sentenced to the state’s prison for a term of two years. Upon writ of error thereto he assigns error upon the sufficiency of the evidence and the refusal of the court to give two requested instructions.
The transcript presented to this court has been made up and certified under the rules pertaining-to civil causes under the option allowed the plaintiff in erro.r in criminal causes and having so elected he must be held to.a compliance with those rules as it is not permissible to confuse the two methods in the same transcript. See Clinton v. State, 53 Fla. 98, 43 South. Rep. 312.
The rule as to civil causes provides succinctly that if the bill of exceptions contains all the evidence the judge shall so certify in the bill and “in the absence of such certificate the bill will be treated and taken as one not embracing all the evidence.” There is no such certificate before us and we are not therefore called upon to pronounce upon the sufficiency of the evidence.
This rule also provides that if “error be predicated upon charges given or refused all the charges given at the trial shall be inserted in the bill of exceptions.” The reason for the rule is obvious; as to a charge given its imperfection may be absolutely cured by other charges and as to charges refused, the refusal may have been based upon the desire to avoid repetition. In any event it is the duty of the plaintiff in error to make . error plainly to appear and in the manner provided by the lawful rules promulgated to that end.
The record does not purport to contain any charge, much less all the charges given at the trial and we therefore decline to review those rejected.
Practically all that we here say has been settled by us in the opinion filed at this term in. the case of Allbritton v. State.
It follows that the judgment is affirmed. Shackleford, C. J., and Whitfield, J., concur;
Tyalor, Hocker and Parkhill, JJ., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Padgett v. State, 64 Fla. 389 (Fla. 1912)…these respective modes of procedure must not be blended,but one or the other must be selected and followed. See Clinton v. State, 53 Fla. 98, 43 South. Rep. 312, 12 Ann. Cas. 150; Albritton v. State, 54 Fla. 6, 44 South. Rep. 745; Stephens v. State, 54 Fla. 107, 44 South. Rep. 710; Hallbeck v. State, 57 Fla. 15, 49 South. Rep. 153. While such option may be exercised, we are of the opinion that it is the better and safer procedure for the plaintiff in error in a criminal case to have his transcript prepared…
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Hallbeck v. State, 57 Fla. 15 (Fla. 1909)…e bill of exceptions and the transcript, instead of proceeding either under Rule 103 or under Special Rules 1, 2 and 3. See Clinton v. State, 53 Fla. 98, 43 South. Rep. 312; Albritton v. State, 54 Fla. 6, 44 South. Rep. [*18] 745; Stephens v. State, 54 Fla. 107, 44 South. Rep. 710; Pope v. State, 56 Fla. 81, 47 South. Rep. 487. As to the assignments founded upon portions of the general charge given by the court to the jury it seems sufficient to say that a careful reading thereof as an entirety discloses…
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Stalnaker v. State, 133 Fla. 671 (Fla. 1938)…hese respective modes of procedure must not be blended, but one or the other must be selected and followed. See Clinton v. State, 53 Fla. 98, 43 South. Rep. 312, 12 Ann. Cas. 150; Albritton v. State, 54 Fla. 6, 44 South. Rep. 745; Stephens v. State, 54 Fla. 107, 44 South. Rep. 710; Hallbeck v. State, 57 Fla. 15, 49 South. Rep. 153. While such option may be exercised, we are of the opinion that it is the better and safer procedure for the plaintiff in error in a criminal case to have his transcript prepared…
Authorities Cited
- Buck Clinton and Edward Clinton v. State, 53 Fla. 98 (Fla. 1907)