State v. Mitchell

Citations

• 29 Fla. 302

Syllabus

<p>1. A writ of error in a criminal cause is not a writ of right and does not issue as a 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.</p> <p>2. In allowing writs of error in criminal causes, judicial discretion is always exercised liberally in favor of the defendant.</p> <p>3. The Judge of the Criminal Court of Record of Duval county has power to allow a writ of error in a criminal cause in which the judgment of that court is reviewable by the Supreme Court, and the clerk may, upon the allowance of the writ, issue both that writ and the writ of scire facias ad audiendum errores. These powers are 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.</p> <p>4. A writ of error is a new action, and not a mere continuation of tlie former suit.</p> <p>5. An order allowing a writ of error does not compel the complaining convict to prosecute a suit in error ; it merely enables him to do it, and if he wishes to 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.</p> <p>•6. An order allowing a writ of error is a judicial permission to institute a suit in error to review the judgment complained of ; it is not the writ, and until the writ is actually issued (if 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 appellate court.</p> <p>7. Though a compliance with the provisions of section 5, p. 455, McClellan’s Digest, as to payment of costs and entering into recognizance with sureties, operates of itself, without any order declaring t