116 BIENNIAL REPORT OF THE ATTORNEY GENERAL
state Attorney shall expire with that of the state Attorney of the Fourth
Judicial Circuit. He should therefore be appointed and commissioned so
as to have his term of office run concurrently with and expire at the
same time as that of the state Attorney for the Fourth JUdicial Circuit.
April 18, 1938.
AUTHORIZED TO PROSECUTE-COUNTY SOLICITOR,
DISQUALIFIED-SECTION 8247 C.G.L.
I acknowledge receipt of your letter of the 18th, in which you state
that the County Solicitor of Hillsborough County, being one of the in
dicted parties, has disqualified himself and it becomes necessary for you
to send someone to the Criminal Court of Record to take his place.
You request that I advise you whether or not you can designate one
of the state's Attorneys of the State of Florida to prosecute these cases
in Hillsborough County.
When the Hillsborough County flogging cases were transferred to
the Criminal Court of Record of Polk County, the then Governor of the
State, Honorable David Sholtz, assigned the Honorable J. Rex Farrior,
State Attorney of the 13th Circuit of Florida, to proceed to Bartow and
officiate as State's Attorney of the 10th Judicial Circuit of Florida in
order to prosecute the flogging cases.
The Attorney General advised the Governor:
"The Constitution provides for the appointment of a state
attorney for each judicial circuit, and his duties are to be pro
vided by law. The Constitution also pTovides for the appoint
ment of a county solicitor of the criminal court of record, where
such courts are established, and his duties are to be provided
by law. The law then provides that the state attorney shall
prosecute all criminal causes in the circuit courts of his district;
and the law provides that the county solicitor shall handle the
criminal prosecution of all causes that are tried in the criminal
court of record.. There is a provision of the law whereby the
transfer may be made of a state attorney from his circuit to
another circuit, but I find no provision whereby a state attorney
may be transferred to try a case in the criminal court of record.
Neither do I find that there is any law authorizing the transfer
of a county solicitor from one criminal court of record to another,
but to take care of this situation the Legislature has provided
that the judge of the criminal court of record in the case of
death, vacancy, inability or necessity may appoint an acting coun
ty solicitor to prosecute in the criminal court of record under
these circumstances. There is another section of the statute,
BIENNIAL REPORT OF THE ATTORNEY GENERAL 117
to-wit: Section 8243 of the Compiled General Laws, which pro
vides that the county solicitor may appoint an assistant county
solicitor. This usually is done in open court, and the statute,
after referring to it, requires that an oath be administered, and
that a minute of this appointment be made and entered in the
minutes of the court."
During the progress of the flogging cases the state's Attorney, the
Honorable J. Rex Farrior of Hillsborough County, filed an affidavit sug
gesting the disqualification of the trial judge for prejudice and the trial
judge proceeded to disqualify himself. A recent writ of mandamus was
issued to require Judge Dewell, the trial. judge, to assume jurisdiction in
the case. The question was raised that the State's Attorney, who was
sworn in as Assistant County Solicitor, had no authority to make the
affidavit of disqualification.. CI might state· here that the record in the
flogging cases shows that after being assigned to officiate as State's
Attorney of the 10th JUdicial Circuit, Mr. Farrior was appointed by the
Solicitor of the Criminal Court of Record of Polk County as Assistant
County Solicitor to assist in the prosecution of these cases.)
The Supreme Court of Florida, in the case of state ex reI. Brown,
et aI., v.s. Dewell, Judge, reported in 179 So. 693, says:
"The second question with which we are confronted may be
stated as follows: Is any assistant county solicitor who has· been
regularly sworn in and designated as such authorized to make
the affidavit of disqualification provided in Section 4341, Com
piled General Laws, 1927."
Again in the opinion the Court said:
"The duties of county solicitors are the same as those of.
state's attorneys, Section 5241, Compiled General Laws, 1927, and
both represent the State in criminal pTosecution. Assistant coun
ty solicitors can perform any duty that county solicitors can
perform, except the signing and filing of informations. The
filing of the affidavit of disqualification is not jurisdictional,.
and is such an act as an assistant county solicitor is competent
It is my opinion that you may reqUire a state's attorney to proceed
to Tampa under an assignment to assist the State's Attorney of the·
13th JUdicial Circuit and that the Judge of the Criminal Court of Record
of Hillsborough County may, under Section 8247, Compiled General
Laws, appoint the said State's Attorney acting County Solicitor of the
Criminal Court of Record of Hillsborough County to prosecute the cases
in which the County Solicitor is disqualified.
You will note that under said section the Judge shall administer
an oath to faithfully discharge the duties of County Solicitor. The
118 BIENNIAL REPORT OF THE ATTORNEY GENERAL
minutes of the Court should show that the state's Attorney was appoint
ed acting County Solicitor by the Judge of the Criminal Court of Record
and that he took the oath in question.
August 30, 1938.
AUTHORIZED UNDER SECTION 4741, C.G.L. TO CAUSE PROCESS TO
ISSUE AND SUMMON WITNESSES
In your letter of the 19th instant you ask whether under Section
4741 of the Compiled General Laws of Florida, 1927, you have authority
as State Attorney to cause process to be issued and have witnesses
brought before you to inquire into the commission of crime of which
the Circuit Court does not have trial jurisdiction.
The amendatory prOVision of Section 4741, Compiled General Laws,
1927, should be construed as a legislative policy and intent to broaden
the inquisitorial powers of the State in apprehending viOlators of the
criminal statutes, so as to give to State Attorneys the power to summon
witnesses to appear 'befOTe them in or' out of term time to testify before
them as to any violation of the criminal law upon which they may be
interrogated, in order that the State Attorneys may be informed in
such matters and act accordingly either in the matter of filing infor
mations in cases where they have the constitutional authority so to
do, or in laying the result of their investigations before their respective
grand juries for consideration and such a~tion as may be determined
upon, . and that this power extends throughout the state.
r am therefore of the opinion that as State Attorney you have the
power and authority under Section 4741' to cause process to be issued
and have witnesses brought before you to inquire into the commission
of crime throughout your circuit, including the county in which there is
a criminal court of record, and regardless of whether the crime so in
vestigated is within the trial jurisdiction of the Circuit Court.
February 17. 1937.
BASTARDY PROCEEDINGS-DUTIES t
I am in receipt of your letter of the 11th instant making inquiry if
it is your duty as State Attorney to represent the State in bastardy
Sections 5876-5880, Compiled General Laws of Florida, 1927, original
ly passed in 1828, except as to Section 5879, which prescribe that any