FRANK PRESTON, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Frank Preston appealed his conviction to the Florida Supreme Court, but the court struck his bill of exceptions for being filed outside the prescribed 60-day deadline and affirmed the lower court judgment based on the procedural deficiency.
The bill of exceptions was properly stricken for being filed after the 60-day deadline prescribed by law. Because all assignments of error were predicated on the stricken bill of exceptions, and no other errors were raised on the record, the Circuit Court's judgment was affirmed.
“by order of the Circuit Court of Highlands County, dated September, 1922, which date was subsequent to the adjournment thereof, under Section 2, Chapter 8476, Acts of 1921, Laws of Florida, there being but one Judge in said Circuit, defendant was given sixty days to prepare and present a bill of exceptions in this cause and none was presented till December 8, 1922, long after the time allowed expired”
Establishes the procedural deadline for filing the bill of exceptions and Preston's failure to meet it.
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Join FLexlaw to unlock all legal intelligencePreston was convicted in the Circuit Court of Highlands County. The Circuit Court issued an order in September 1922 allowing Preston 60 days to prepar…
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Per Curiam.
This cause coming on to be heard on its merits and petition of defendant in error for certiorari suggesting diminution of the record in the matter of arraignment and plea; also motion of defendant in error to strike from the record the bill of exceptions, and it appearing to the Court that the transcript of the record does not contain a copy of the record of the arraignment and plea aforesaid although the same were at the time of the trial of said cause of record in the Circuit Court of Highlands County, it is, therefore, considered, ordered and adjudged that the petition of defendant in error be granted, and that the certified copy of the record of said arraignment and plea be filed in this Court as part of the record in this cause. Lovett v. State, 29 Fla. 356, 11 South. Rep. 172; Turman v. Whaley, 43 Fla. 284, 32 South. Rep. 811.
And it appearing to the Court that by order of the Circuit Court of Highlands County, dated September, 1922, which date was subsequent to the adjournment thereof, under Section 2, Chapter 8476, Acts of 1921, Laws of Florida, there being but one Judge in said Circuit, defendant was given sixty days to prepare and present a bill of exceptions in this cause and none was presented till December 8, 1922, long after the time allowed expired, it is further ordered and adjudged that the motion of defendant in error to strike the bill of exceptions be and the same is hereby granted. Smith v. State, 20 Fla. 839; Bush v. State, 21 Fla. 569; Montgomery v. State, 54 Fla. 73, 45 South. Rep. 813; Washington v. State, 48 Fla. 62, 37 South. Rep. 573; Jackson v. State, 84 Fla., 646, 94 South. Rep. 505.
And the cause having been fully argued and considered on its merits and there being no assignment of error, other than on the judgment rendered, predicated on any part of the record except the bill of exceptions, which is stricken, it is therefore considered, ordered and adjudged that the judgment of the Circuit Court being in accordance with law, be and the same is hereby affirmed. Horn v. State, 40 Fla. 472, 24 South. Rep. 147; Anderson v. Winer & Whaley, 50 Fla. 177, 39 South. Rep. 31; Lasseter & Co. v. Zapf, 57 Fla. 89, 48 South. Rep. 749; Carter v. Stockton, 60 Fla. 33, 53 South. Rep. 450.
Affirmed.
Whitfield, P. J., and West and Terrell, J. J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Davenport v. State, 94 Fla. 32 (Fla. 1927)…37 So. 573; Bardwell v. State, 49 Fla. 1, 38 So. 511; Carter v. Stockton, 60 Fla. 33, 53 So. 450; Jackson v. State, 84 Fla. 646, 94 So. 505; Granquist v. State, 86 Fla. 32, 97 So. 205; Lanier v. Shayne, 85 Fla. 212, 95 So. 617; Preston v. The State, 86 Fla. 476, 98 So. 358. In the absence of some reasonable showing why the bill of exceptions was not presented to Judge Lane within the [*42] time allowed by his special order, and his refusal to settle and sign the same, plaintiffs in error were not entitled…
Authorities Cited (11 total)
- Lovett v. State, 29 Fla. 356 (Fla. 1892)
- Jackson v. State, 84 Fla. 646 (Fla. 1922)
- Bush v. State, 21 Fla. 569 (Fla. 1885)
- Montgomery v. State, 54 Fla. 73 (Fla. 1907)
- Smith v. State, 20 Fla. 839 (Fla. 1884)
- Emmett Washington v. State, 48 Fla. 62 (Fla. 1904)
- Anderson v. Winer, 50 Fla. 177 (Fla. 1905)
- Carter v. Stockton, 60 Fla. 33 (Fla. 1910)
- Horn v. State, 40 Fla. 472 (Fla. 1898)
- Lasseter v. Zapf, 57 Fla. 89 (Fla. 1909)