Opinion
Opinion Filed May 25, 1934.
ON MOTION FOR ADJUDICATION OF INSOLVENCY.
On writ of error to the Criminal Court of Record for Dade County, E. C. Collins, Judge.
George S. Okell, for Plaintiff in Error;
Cary D. Landis, Attorney General, and Roy Campbell, Assistant, for the State.
The Judge of the Criminal Court of Record made the following order in a criminal case wherein the defendant had been tried and found guilty of manslaughter and thereafter sentenced to serve twenty years in State Prison:
"This cause coming on to be heard in open court upon motion of Walkene Rolle, defendant, that the court make and enter an appropriate order for the payment of costs in this case and directing that the bill of exceptions and transcript of record be made up at the cost of Dade County, Florida, and other costs for bringing up the appeal by writ of error to the Supreme Court of Florida, as provided by the statutes of this State.
"The Court having before it also the sworn affidavit and petition of the defendant, Walkene Rolle, and the order heretofore made in this cause adjudging the said defendant insolvent in accordance with the statutes and the Court being satisfied that the facts contained in the insolvency affidavit of defendant were true and the same having been proven to be true in open court at this time.
"The Court also having before it the stipulation of the County Solicitor in and for Dade County, Florida, waiving in behalf of the State, the traversing of the facts set forth in the insolvency affidavit and petition of the defendant, Walkene Rolle, and stipulating that the defendant does not own any real or personal property whatsoever or has any means of income to pay the costs of an appeal as set forth in said insolvency affidavit.
"And the Court being of the opinion that the County should not be burdened or be obliged to pay the costs of the appeal as set forth in the motion for an order for payment of costs.
"IT IS, THEREFORE, ORDERED AND ADJUDGED that the motion for the making and entering of an appropriate order declaring the defendant insolvent and for payment of costs of appeal be and is hereby denied. An exception is hereby noted for the defendant, Walkene Rolle, to the ruling of the Court.
"DONE AND ORDERED at Miami, Florida, this 27th day of March, A. D. 1934.
"E. C. COLLINS, "Judge."
Writ of error was sued out in this Court on May 16, 1934, and the proposition before us at this time is relief predicated upon the holding of this Court in Rast v. State, 77 Fla. 225, 81 Sou. Rep. 523.
Section 8489 C. G. L., 6175 R. G. S., provides that in case the plaintiff in error in a criminal cause shall be utterly unable to pay the costs of the cause, and shall establish satisfactorily to the Court by competent evidence that he is utterly unable to pay the costs or give bond therefor, as required by Section 8468 C. G. L., 6154 R. G. S., that in cases of appeal, the costs allowed by law shall be paid by the county in which the crime was committed. In Rast v. State, supra, the terms of the above statute were upheld and enforced by order of this Court made in a proceeding similar to that now before us.
Upon the authority of Rast v. State, supra, the order entered by the Criminal Court of Record of Dade County on March 27, 1934, is reversed with directions that an order be entered in its stead requiring the County of Dade to pay the costs in said cause, including the costs of the appellate proceedings instituted therein.
Order denying adjudication of insolvency in criminal case reversed with directions.
WHITFIELD, TERRELL and BUFORD, J. J., concur.