Opinion
November 14, 1952.
Appeal from the Circuit Court, Indian River County, A.O. Kanner, J.
Angus Sumner, Fort Pierce, for appellant.
Richard W. Ervin, Atty. Gen., and Boone D. Tillett, Jr., Asst. Atty. Gen., for appellee.
This is an appeal from the sentence and judgment of the Circuit Court of Indian River County based upon a verdict of guilty returned by the Jury of manslaughter on an indictment for murder in the second degree. The sentence was to the State Penitentiary for a period of 15 years.
The appellant moved to quash the indictment on the ground that said indictment was signed by the Assistant State Attorney and not the State Attorney of the Ninth Judicial Circuit. The motion was denied. The appellant pleaded "not guilty" and was then placed on trial with the result as above stated.
Only one question is presented: Has the Assistant State Attorney for the Ninth Judicial Circuit the power and authority to sign an indictment returned by the Grand Jury?
The indictment in question was signed "Thad H. Carlton Assistant State Attorney for the Ninth Judicial Circuit, State of Florida, Prosecuting for Said State."
There is no question about the fact that Thad H. Carlton was the duly appointed and qualified Assistant State Attorney for the Ninth Judicial Circuit of Florida. He was not simply assisting the State Attorney as a member of the Bar under the terms of Section 27.18, F.S.A. It is important to call attention to the difference between the office of "Assistant State Attorney" provided for by the statute and appointed by the Governor for a regular term, and an "assistant to the State Attorney."
Section 27.18, F.S.A., is as follows:
"The state attorney, by and with the consent of court, may procure the assistance of any member of the bar when the amount of the state business renders it necessary, either in the grand jury room to advise them upon legal points and framing indictments, or in court to prosecute criminals; but, such assistant shall not be authorized to sign any indictments or administer any oaths, or to perform any other duty except the giving of legal advice, drawing up of indictments, and the prosecuting of criminals in open court. His compensation shall be paid by the state attorney and not by the state." (Emphasis supplied.)
Particular attention is called to the fact that the above section specifically prohibits an "assistant to the State Attorney" from signing any indictments.
Section 27.19, F.S.A., provides for the statutory office of "Assistant State Attorney" and is as follows:
"In all judicial circuits of Florida composed of seven or less counties, except in the first and second judicial circuits, there shall be one assistant state attorney and in all judicial circuits composed of more than seven counties there shall be two assistant state attorneys."
The Ninth Judicial Circuit is composed of 8 counties as follows: Brevard, Indian River, Martin, Okeechobee, Orange, Osceola, Seminole and St. Lucie Counties.
Section 15 of Article V of the State Constitution, F.S.A., creating the office of State Attorney, is as follows:
"The Governor, by and with the consent of the Senate, shall appoint a State Attorney in each judicial circuit, whose duties shall be prescribed by law, and who shall hold office for four years." (Emphasis supplied.)
The above section is still in full force and effect except as modified by an amendment adopted at the General Election in 1944, which now appears as Section 47 of Article V of the State Constitution. So far as the State Attorney is concerned this section simply provided for his election by the qualified electors in their respective judicial circuits instead of being appointed by the Governor.
It, therefore, appears that the Constitution does not fix the powers and duties of the constitutional officer of State Attorney but leaves it up to the Legislature to prescribe his powers and duties. The same is true with reference to the office of Assistant State Attorney. This office is a statutory office, and it is elementary that the Legislature has full and complete power to prescribe the powers and duties of a statutory officer, unless limited by the Constitution.
As the population of the state increased and it became almost impossible for the State Attorneys of the State to perform all of the powers and duties prescribed by law, it became apparent that assistance other than that provided for by Section 27.18, F.S.A., was necessary. The Legislature took cognizance of this situation and in 1935 enacted Chapter 16784 of which Section 1 of said chapter became and is now Section 27.19, F.S.A.
Section 27.21, F.S.A., was in full force and effect when the 1950 Census was published, at which time the Ninth Judicial Circuit was eliminated from said section, but said Circuit did not come under the provisions of Section 27.22, F.S.A. This situation made Section 27.19, F.S.A., above quoted, applicable to the Ninth Judicial Circuit. The main difference between Sections 27.21, F.S.A. and 27.22, F.S.A., is that of population, and the change in population resulted in a change of the applicable section of the law as to the Ninth Judicial Circuit.
There is a slight difference between these two sections with reference to the duties and powers of Assistant State Attorneys. Section 27.21, F.S.A., provides that Assistant State Attorneys "are hereby vested with all the powers and shall discharge all the duties of the state attorney, including the right to sign indictments, informations and other documents, which he shall sign as assistant state attorney". Section 27.22, F.S.A., provides "said assistant state attorneys are hereby vested with all the powers and shall discharge all the duties of the state attorney, under his direction." Although not necessary, these two sections show clearly the legislative intent that Assistant State Attorneys were vested with the power to sign indictments. The fact that by reason of an increase in population the Ninth Judicial Circuit is not now and was not at the time the indictment was found, to wit, the 18th day of March, 1952, included in Section 27.21, F.S.A., or Section 27.22, F.S.A., but was included in Section 27.19, F.S.A., does not divest such Assistant State Attorneys of the power to sign indictments.
The appellant urges that he is deprived of his constitutional rights guaranteed to him by Section 10 of the Declaration of Rights of the State Constitution, as amended at the General Election in November, 1934, which provides:
"No person shall be tried for a capital crime unless on presentment or indictment by a grand jury, and no person shall be tried for other felony unless on presentment or indictment by a grand jury or upon information under oath filed by the prosecuting attorney of the court wherein the information is filed, except as is otherwise provided in this Constitution". (Emphasis supplied.)
Prior to the amendment of Section 10 of the Declaration of Rights, in 1934, the section provided that "No person shall be tried for a capital crime or other felony, unless on presentment or indictment by a grand jury * * *."
It is significant that Section 10, as amended, eliminates the necessity of an indictment by a grand jury for a felony other than capital and substitutes in lieu of an indictment by the grand jury an "information under oath filed by the prosecuting attorney of the court wherein the information is filed". In other words, the State Attorney is the prosecuting officer in the Circuit Court and if a person is to be prosecuted for a felony other than capital, he may be prosecuted on an information filed by the State Attorney but such information shall be under oath.
There is no requirement in the Constitution that a State Attorney or the prosecuting officer shall sign the indictment under oath. However, there is a statute which requires the prosecuting officer to sign an indictment in the same manner as the foreman of the grand jury. This statute, 905.23, F.S.A., provides as follows:
"An indictment shall not be found without the concurrence of twelve grand jurors. When so found, the same shall be signed by the state attorney, or acting state attorney, and the foreman or acting foreman shall indorse it `A true bill,' sign it, and return it into court. When not so found, the foreman shall endorse the words `No true bill' on the file, sign same, and return it into open court."
"Assistant prosecuting attorney" means "Assistant State Attorney" in this case. So far as the above section is concerned, it vests the same powers and duties as to the matters mentioned therein in the Assistant State Attorney that it vests in the State Attorney.
In the case of State ex rel. Ricks v. Davidson, 121 Fla. 196, 163 So. 588, the petitioner was held under an information signed by the Assistant State Attorney and sworn to by him. In the opinion in that case the Court made a clear distinction between an information which the Constitution requires to be sworn to by the prosecuting officer, and an indictment by the grand jury where there is no such requirement. No such question is here presented, and the case is not applicable.
The appellant relies principally upon the case of Sullivan v. Leatherman, Fla., 48 So.2d 836, 839. There is no similarity between the case at bar and the case of Sullivan v. Leatherman, supra. In the case of Sullivan v. Leatherman, supra, the indictment was signed by the "special counsel to the 1950 Spring Term Grand Jury * * * for Dade County." In an opinion by Mr. Justice Terrell it was pointed out that Chapter 25765, Special Acts of 1949, did nothing more than authorize the grand jury to use funds appropriated by it to employ special investigators and legal counsel to investigate crime and enforce criminal laws. There was nothing in the title or body of that Act which indicated any intent to relieve the State Attorney of his duty placed upon him by law. The Court then said:
"* * * To uphold respondent's contention would be tantamount to creating a second law enforcement agency out of the grand jury and its Special Counsel which we find no warrant for whatever. It would in effect vest sovereign power in private citizens with carte blanche to go out and prosecute whom they please. We can think of nothing more demoralizing to the administration of the criminal law.
"* * * Both the Constitution and the statute contemplate that the State Attorney or one acting for him sign all indictments. His signature is essential to give it legal status and in reality it does not become an indictment till he signs it. Absent such signature, it is no more than a letter without the signature of the writer, a promissory note without the signature of the maker or a contract without the signature of the contracting parties." (Emphasis supplied.)
In the case of State ex rel. Cooper v. Coleman, 138 Fla. 520, 189 So. 691, the authority of the Assistant State Attorney was considered and passed upon by the then Circuit Judge Paul D. Barns. In remanding the prisoner he held that the Assistant State Attorney had authority to sign the indictment. In affirming the lower Court, this Court quoted and adopted the views of the Circuit Judge.
This is not a case like that of Sullivan v. Leatherman, supra, where the indictment was signed by the "special counsel to the 1950 Spring Term Grand Jury * * * for Dade County", neither is it similar to the case of State ex rel. Ricks v. Davidson, supra, where there was no indictment, but as a substitute therefor, an information sworn to by the Assistant State Attorney. It is not a case where the indictment was signed by "an assistant to the State Attorney" provided for by Section 27.18, F.S.A., as distinguished from an "assistant state attorney" provided for by Section 27.19, F.S.A. Section 27.18, F.S.A., specifically provides that "such assistant shall not be authorized to sign any indictments". The fact that such words are used in one section and are not used in the other, construed in connection with Sections 905.19 and 905.23, F.S.A., clearly demonstrates the legislative intent that the "assistant state attorney" was authorized to sign an indictment found by the grand jury.
In this case the appellant was fully and completely informed of the nature of the charge against him. He makes no complaint that he did not know what he was charged with; he makes no complaint about the regularity of the trial or the sufficiency of the evidence. His only complaint is that the indictment was signed by the Assistant State Attorney rather than by the State Attorney. Section 10 of the Declaration of Rights has been fully complied with and no right guaranteed to the appellant by the Bill of Rights or any other provision of the Constitution has been denied to him by reason of the signing of the indictment by the Assistant State Attorney.
All sections of the Constitution and of the statutes relating to this matter should be construed together and when this is done we come to only one conclusion and that is, that the Assistant State Attorney had the power and authority to sign the indictment in question and that the said indictment was a valid and legal indictment.
Affirmed.
SEBRING, C.J., and ROBERTS and DREW, JJ., concur.