The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1892-04-16
sUrREmE coURr OF rLonIDA


The State of Florida VS.. George N.
Mitchell-Duval county.
RANEY, c. j.:
1. A writ of error in criminal cause
is not writ If right and does not issue
as matter of course on the application
OF the party convicted, but only upon The
judicial allowance by a court, justice or
judge having authority to allow the
same.
Q. In allowing writs of error in crimi-
nal causes, judicial discretion is always
exercised literally in favor of the de-
PENDANT.
3. The judge of the criminal court Of
record of Duval county has power to
allow writ of error in criminal cause
IN which the judgment of that court is
renewable by the supreme court, and the
clerk may, upon the allowance OF the
| writ, issue both that writ and the writ of
sctre tdcsdS dd dudienduna err0res. These
powers not exclusive of The power of
the supreme court or a justice thereof to
allow the writ of error, nor of that of the
clerk of the latter court to issue these
writs.
| 4. A writ Of err or is new action, and
not mere continuation of the former
suit.
| An order allowing writ of error
does not compel the complaining convict
to prosecute suit in error it merely
enables him to do it, and if he wishes 10
avail himself of this permission he may
do SO by applying to either the clerk of
the appellate court or of the court which
rendered the judgment for the writ, and
the clerk should issue it.
6. An order allowing writ of error is
a judicial permission to institute suit in
error to review the judgment complained
Of; it is not the writ, and until the writ
is actually issued Gf not it may be both
issued and lodged in the court whose
judgment is to be reviewed) there is no
suit in error, and the appellate court has
no jurisdiction of the cause. The writ is
the process by which the record or cause
is removed to the appe late court.
Z. Though C mpliance with the pro-
visions of section 5, p. 455, McClellau's
Digest, as to payment of costs and enter
ing into recognizance with sureties, oper-
ates of ITSELF without any order declaring
the effect Of such compliance, to make the
writ oferror when issued stay the fur ther
execution of the sentence Of the court, as
also does compliance with the several
provisions of section7, page 456, Ibid, still
this SUI erseding effect does not even in a
bailable case authorize the discharge OF
the defendant if he he in custody, but by
the express provision Of section 5. p. ass,
Ibid. there must be an order, by the
court or judge allowing the writ, for his
discharge; which order should always be
made as matter of course, in bailable
cases, where all the supersedeas provis
m,
piled with.
8. A compliance with the supersedeas
! provisions of the statute will of itself
give writ of error in criminal cases the
effect Of supe seding the further execu-
ton of the sentence, and no order that a
compliance with those provisions shall
have this supe seding effect, is necessary,
: and the officers of the law must take no.
tce of and act in obedience to the effect
of such mere compliance. The practice
which obtains. however, of d. claring in
the order allowing the writ, that a com
pliance with the supersedeaS provision.
will have the fleet 10 make the writ Cd
crate as a supersedeas, though adding
nothing to the effect of such compliance
is not harmful. but may aid the ministe-
rial officers Of the courts.
8. An order allowing a writ of error in
criminal cause, and a compliance will
the prov isiOnS of the statute intended tC
make the writ operate as Supersedeas
do not suspend or SuperSede the ex-
ecutlOn OF the sentence where no writ is
actually issued; MOI, where no writ is
issued, do such an order and such compli
ance, and further order that the com
pliance shall make the writ operate as a
supersedeas. There must be at least >
writ actually issued Tor. it may be, issued
and served,) after it is allowed, and it il
the writ Or suit in error that the statute
intends shall ope ate as sup rsedeas tC
the Judgment, upon compliance with the
: supersedeas provisions of the statute.
TO- Service of writ of error is made
by lodging the writ in the court which
rendered the judgment sought to be re
viewed.
II. Where an order allowing a writ OF
error from the supreme court to crimi
nal court of record is made by the Judge
of the latter court. and such order direct.
that the writ shall operate as a superse
IDEAS, and it appears that the party con
victed has made the oath and furnished
proofs which under section Z, page 456, Nc
Clellan Digest, cause a writ of erro,
to o. crate as supersedeas in a bail bic
case II he remains IN custody, and at the
term of the former curt to which such
writ, if issued, should have been made
returnab'e, the state moves to dismiss the
writ. but no writ Of error has i'm fact
issued. the motion must be denied. ahC
for the reason thai t ere is no writ of, OF
sui In. error to dismiss, and the co II
has no jurisdiction o any such suit OF
writ
IL Where a witt of error is all wed
but n issued, the warrant for the exc
cution of the sentence should be issueG
and execu'ed.
Motion to di miss denied
William B. Lamar. attorney general
for motion; no appearance contra
L. onidas w. Spratt, Appellant. VS.. Cit,
of Jacksonville, Appel e-Duv county
RANEY, G.. j.: