EX PARTE BERNARDO ALVAREZ
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The Florida Supreme Court denied certiorari in a case where a defendant's writ of error was dismissed by the circuit court for a technical defect in the assignment of errors. The court found no material error in the original trial despite the dismissal.
No, the Circuit Court did not err in a way that prejudiced the petitioner. Even if the dismissal was erroneous, the underlying conviction was supported by ample evidence and free from material error.
“Even if the Circuit Judge upon motion of counsel for the city enquired into the nature of the original records and files that were made a part of the transcript on the writ of error and erred in doing so, and also erred in dismissing the writ of error on the ground stated, an examination of the entire record of the trial and proceedings in the municipal court, including the evidence contained in a duly authenticated bill of exceptions that was filed and made a [*454] part of the re.eord in the municipal court, shows that no material error of law or of procedure was committed, and that the evidence is ample to sustain the conviction on the charge as made, therefore the petitioner was not injured by a dismissal'of his writ of error.”
This quote explains the court's reasoning that even if the lower court made a procedural error, the conviction was sound and the petitioner was not prejudiced.
Alvarez was convicted in the municipal court of Tampa for possessing a device for conducting a game of chance. He appealed to the Circuit Court via a …
The full statement of facts, procedural history, and disposition for this case are member content.
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Whitfield, J.
In a petition for a writ of certiorari Alvarez alleged that he was convicted in the municipal court of the City of Tampa, Florida, for violation of an ordinance against having in possession a device for conducting a game of chance known as bolita, that a writ of error was taken to the Circuit Court and that the Circuit Court dismissed the writ of error on the ground that though the transcript contained a duly signed assignment of errors, the assignment of errors as presented to the judge of the municipal court with the bill of exceptions was not signed by counsel.
Even if the Circuit Judge upon motion of counsel for the city enquired into the nature of the original records and files that were made a part of the transcript on the writ of error and erred in doing so, and also erred in dismissing the writ of error on the ground stated, an examination of the entire record of the trial and proceedings in the municipal court, including the evidence contained in a duly authenticated bill of exceptions that was filed and made a part of the re.eord in the municipal court, shows that no material error of law or of procedure was committed, and that the evidence is ample to sustain the conviction on the charge as made, therefore the petitioner was not injured by a dismissal'of his writ of error. Certiorari denied.
Browne, C. J., and Taylor and West, -J. J., concur. Ellis, J., specially concurs.
Ellis, J.,
specially concurring. — I concur in the conclusion reached to deny the writ of certiorari upon the : ground that there was no error, in the order of the Circuit Court dismissing the writ of error to the municipal court.