Opinion
No. N-372.
July 2, 1970. Rehearing Denied August 5, 1970.
Appeal from the Criminal Court of Record of Duval County.
Joseph A. St. Ana, Jacksonville, for petitioner.
Earl Faircloth, Atty. Gen., and J. Christian Meffert, Asst. Atty. Gen., for respondent.
This matter is before this court on petition for a writ of certiorari to the Circuit Court of Duval County, Florida.
The defendant was informed against in the Criminal Court of Record of Duval County, for the crime of assault to murder. On the day set for trial, the State Attorney suggested he would like to file a new information charging the defendant with only aggravated assault. The defense attorney objected to going to trial on that day, requesting a continuance, but did not object to the filing of the new or amended information. The motion to continue was not in writing and was denied. The defendant was convicted only of assault and battery. The case was appealed to the Circuit Court of Duval County, and affirmed. Hence this petition for certiorari.
We are committed to the precedent heretofore set by this court and other appellate courts of this state, that the certiorari jurisdiction of this court directed to the circuit courts sitting in their appellate capacity is limited to determining from the face of the record whether the lower court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of law which are deemed essential to the administration of justice.
In the case sub judice, it appears that the matters complained of did not pertain to jurisdiction but only an abuse of the trial court's discretion in denying continuance. The circuit court sitting in its appellate capacity affirmed the conviction in the trial court thereby necessarily finding no abuse of discretion by the trial court. Nothing has been shown to this court which shows any abuse by either the trial court or the circuit court warranting any further review by this court and therefore the petition for writ of certiorari is denied. State v. Smith, 118 So.2d 792, 795 (Fla.App.1st, 1960).
WIGGINTON and SPECTOR, JJ., concur.