STATE OF FLORIDA, APPELLANT,
v.
GEORGE L. MCINNES, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The State of Florida appealed the trial court's order quashing two counts of an extortion information against McInnes. The First District Court of Appeal addressed whether the defendant could cross-appeal the denial of his motion to quash the remaining counts, and whether the trial court's order adequately addressed the defendant's constitutional challenge to the extortion statute.
The court held that a defendant may maintain a cross-appeal relating to the same order from which the State's appeal is taken, even though he could not file a separate interlocutory appeal. The court further held that when a constitutionality challenge is raised in a motion to quash, the trial court's order must specify whether it directly passed upon the constitutional issue.
“It is generally held that cross-assignments of error are allowable only when they could have supported a separate and distinct appeal, unless they relate to the same judgment from which the main appeal is taken.”
Establishes the general principle governing when cross-appeals are permitted in appellate practice.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcInnes was charged in an amended information with four counts of extortion under Florida Statute § 836.05. The trial court granted McInnes's motion t…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Appellate Courts cases and more on FLexlaw
Appellant State of Florida charged ap-pellee Mclnnes in four separate counts of an amended information with the violation of the statute pertaining to extortion.1 On motion of appellee the trial court entered an order quashing the first and fourth counts of the information, but denying the motion to quash the second and third counts thereof.
From that part of the order quashing two counts of the information the State has appealed pursuant to the authority granted by statute.2 Appellee has cross-assigned as error that portion of the order which denied his motion to quash the second and third counts of the information. Appellee’s motion to quash contains twenty-two grounds, among them being one predicated upon the allegation that the portion of the statute upon which the third count of the information is based is unconstitutional.
This case is now before the court on the State’s motion to dismiss the cross-appeal taken by the appellee based upon his cross-assignments of error, or in the alternative to remand the cause to the trial court for the entry of an order specifying whether the constitutionality of the statute in question was specifically passed upon in denying appellee’s motion to quash the second and third counts of the information.
We shall first dispose of the State’s motion to dismiss the appellee’s cross-appeal. It is the State’s contention that appeals in criminal cases may be taken only in accordance with the provisions of statutes and rules relating thereto. It is argued that the statute which permits the State to take an appeal from an order quashing an indictment or information, or any count thereof, contains no provision permitting the defendant to cross-assign as error any other interlocutory order or ruling of the court which may have been entered during the course of the proceeding. The State further contends that no provision for taking a cross-appeal by a defendant under the circumstances present in this case is contained in the rules of appellate procedure relating to criminal appeals.
The appellate rules provide that appeals in criminal cases shall be prosecuted in accordance with Part 6 of the rules and, except as therein stated, with such provisions of other parts of the rules as are not inconsistent with the provisions of Part 6, 31 F.S.A.3 The rule relating to assignments and cross-assignments of error as contained in Part 6 of the appellate rules pertains only to appeals taken from judgment or sentence, or both, except when an appeal is taken by the State under authority of a statute with which we are not presently concerned.4 We find nothing in Part 6 of the rules which specifically prohibits a defendant from taking a cross-appeal in those instances where the main appeal has been taken by the State pursuant to F.S. § 924.07(1), F.S.A. Reverting to other parts of the Florida Appellate Rules we find a provision for the assignment of errors by the appellant in appeals taken to review interlocutory orders in civil actions.5 Except as modified by this rule, other appellate rules shall apply to interlocutory appeals.6 The rules relating to appeals from final judgments and decrees *583in civil actions permits cross-appeals by the appellee.7
It is generally held that cross-assignments of error are allowable only when they could have supported a separate and distinct appeal, unless they relate to the same judgment from which the main appeal is taken.8 Under this general principle, as well as under our rules of appellate procedure, the appellee in this case would not have the right to maintain a separate and distinct appeal from the order denying his motion to quash the information. This is for the reason that appeals from interlocutory orders entered in criminal cases may not be the subject of an interlocutory appeal unless specifically authorized by statute or rule of the Supreme Court. He does, however, have the right to maintain his cross-appeal in this case since it relates to the same order from which the State’s appeal is taken. For the foregoing reasons the State’s motion to dismiss the cross-appeal taken by appellee herein is denied.
We now turn to the State’s motion to remand this cause to the trial court for the entry of an order specifying whether the constitutionality of § 836.05, of the statutes was directly passed upon in considering and overruling appellee’s motion to quash the information. Such issue was raised by appellee in his motion to quash, and is likewise cross-assigned as error by appellee on this appeal.
It is fundamental that the constitutionality of a statute may not generally be considered on appeal unless the issue was raised and directly passed upon by the trial court. An examination of the order denying appellee’s motion to quash the information does not specify the particular ground or grounds considered by the court, nor does it indicate whether the constitutionality of the statute in question was considered or passed upon. If one of the questions to be determined on this appeal involves the constitutionality of the statute under which appellee is charged in the information, the case must ultimately be transferred to the Supreme Court for its consideration and decision.9 If it is held that the statute is unconstitutional and void, the remaining questions presented by this appeal would be moot.
The State’s motion to remand is’ therefore granted, the jurisdiction of this court temporarily relinquished and the cause remanded to the trial court for the entry of an amended order on appellee’s motion to quash the amended information, with directions that such order as may be entered specify whether the court directly passes upon the constitutionality of F.S. § 836.05, F.S.A, in the rendition of its decision.10 Upon the entry of such amended order a certified copy thereof shall be forthwith transmitted to the clerk of this court for consideration in the further proceedings of the cause.
We have carefully considered appellee’s motion to dismiss this appeal but find it to be without substantial merit.
Remanded with directions.
CARROLL, DONALD K., Chief Judge, and RAWLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
-
Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1966)…, 154 So. 317; Evans v. Hillsborough County, 135 Fla. 471, 186 So. 193; Mills v. Mills, 153 Fla. 746, 15 So. 2d 763; Henderson v. Antonacci, Fla.1952, 62 So. 2d 5; Greene v. Alexander Film Co., Fla.1953, 65 So. 2d 53; State v. McInnes, Fla.App.1961, 133 So. 2d 581; Gleason v. Dade County, Fla.App.1965, 174 So. 2d 466; cf. 6 Fla.Jur., Constitutional Law, § 50, p. 310, n. 14. . Greene v. Alexander Film Co., (Fla.1953) 65 So. 2d 53; 1 Fla.L.Rev. 460. . Townsend v. Beck, 140 Fla. 553, 192 So. 390. Cf. Schaff v.…
-
Lopez v. State, 638 So. 2d 931 (Fla. 1994)…. Fla.R.App.P. 9.140(b). See State ex rel. Shevin v. Pierce, 269 So. 2d 664 (Fla.1972). However, the question of whether there may be a cross-appeal requires an analysis of a number of decisions. The earliest case of pertinence was State v. McInnes, 133 So. 2d 581 (Fla. 1st DCA 1961), cert. denied, 139 So. 2d 692 (Fla.1962), in which the State had appealed an order quashing two counts of a four-count information. The defendant cross-appealed that portion of the order denying his motion to quash the remaining…
-
State v. McADAMS, 559 So. 2d 601 (Fla. 5th DCA 1990)…r that Rule 9.140(f) would grant the court the authority, once its jurisdiction is invoked, in the interest of justice “to grant any relief to which any party is entitled,” (emphasis added).2 This is consistent with the decision in State v. McInnes, 133 So. 2d 581 (Fla. 1st DCA 1961), cert. denied 139 So. 2d 692 (Fla.1962) which permitted the defendant to cross-appeal, although a direct appeal would have been precluded by the rules, because the court found “nothing in the rules which specifically prohibits a…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robinson v. State, 132 So. 2d 3 (Fla. 1961)
- Sol I. Cohen v. State, 121 So. 2d 155 (Fla. 1960)