CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 5330
...A petition for a writ of certiorari has been filed by the State of Florida for a review by this court of a decision of the Circuit Court for Palm Beach County, Florida, sitting in its appellate capacity. The resolution of the issue in this case involves an interpretation of Sections
932.61 and
932.63, F.S.1970, F.S.A., which are parts of a recent enactment by the Florida legislature providing for the transfer of certain causes from municipal courts to state courts for trial by jury....
...Thirty days, however, elapsed from the date of the transfer to the state court without action • having been' taken therein to prosecute respondent. Consequently on 12 November 1970 an order was entered by the judge of the Small Claims-Magistrate Court which, on the basis of Section 932.63, F.S.1970, F.S.A., dismissed the charges for failure of the state to file a formal information....
...sferred to a state court for trial before a jury, where the violation of the municipal ordinance constitutes a violation of state law and the municipality does not provide a jury trial. The provisions of Section
932.61, F.S.1970, are supplemented by Section
932.63, F.S.1970, which provides : “If the petitioner is not incarcerated, the prosecuting attorney shall, within thirty (30) days of receipt of the petition, after due and diligent consideration and investigation of defendant’s cause, fi...
...the clerk. Upon failure of the prosecuting attorney to take action within thirty (30) days, the cause shall be dismissed by the clerk of the court in which the cause is pending.” (Emphasis added.) It was in reliance on the emphasized provisions of Section 932.63, F.S.1970, F.S.A., above, that the....
...No contention is raised here with respect to the lapse of the thirty day period. Hence, we do not discuss the various constructions which could be given to the language relating to the measurement of that period. The issue narrows down to this: did the 12 November 1970 dismissal by the state court pursuant to Section
932.63, F.S.1970, F.S.A., of the cause transferred to it by the municipal court under the authority of Section
932.61, F.S....
...ion against the respondent based on the same facts which gave rise to municipal violation in the first instance? We hold that the dismissal was not a bar to the subsequent filing of an independent information by such authorities. In the first place, Section 932.63, F.S.1970, F.S.A., which authorized the dismissal does not expressly provide that such dismissal shall be a bar to the later filing •of an independent information by the proper state authorities based upon the same facts. If by judicial construction we were to give such effect to Section 932.63, F.S....
...1970, F.S.A., we in effect would be interpreting the section as a statute of limitations for that class of offenses to which it relates, namely, those offenses which give rise to a municipal ordinance violation which is ultimately transferred to state court pursuant to Section
932.61, F.S.1970, F.S.A. To so interpret Section
932.63, F. S.1970, F.S.A., would render it unconstitutional because nowhere in the title to the act * which added Section
932.63, F.S.1970, F.S.A., to the laws of Florida is there even the slightest hint that the body of the statute contemplated such a drastic change in the theretofore existing statute of limitations (Section 915.03, F.S.1970), F.S.A., which provided a two year period of limitations for the prosecution of such offenses. See dissenting opinion in Davis v. Smith, Fla.App.1969,
227 So.2d 342, 345 , and the approval thereof by the Florida Supreme Court in Smith v. Davis, Fla.1970,
231 So.2d 517 . Secondly, Section
932.63, F.S.1970, F.S....
...We find it difficult to believe that the legislature intended an administrative act to stand as a bar to a later prosecution. When the judge of the Small Claims-Magistrate Court entered his final order of dismissal on 1 February 1971, he based his decision not only on the prior Section 932.63 dismissal, but also upon the notion that double jeopardy somehow barred the subsequent filing of the information....
...Smith, Fla.App.1967,
197 So.2d 865 ; McCoy v. District Court, 1964, 156 Colo. 115 , 397 P.2d 733 ; State v. Blackwell, 1948, 65 Nev. 405 , 198 P.2d 280 ; State v. Harriman, Me.1969, 259 A.2d 252 , opinion modified 265 A.2d 706 . His reliance on the Section
932.63 dismissal was error for the reasons mentioned above....
