County Judge's Court verses County Courts
The Florida constitution of 1885, Article V, sections 16 and 17, mandated a County Judge in each county, and permitted, in Article V, section 18, a County Court to be established upon act of the legislature. A County Judge presided over a County Judges Court, while a County Court was presided over by a County Court Judge. Even the 1968 revision called for County Judges' Courts in each county in Article V, section 7, and allowed the legislature to organize County Courts as it saw proper in Article V, section 8. A 1996 amendment that would have added County Courts in each county in Article V, section 6, and which also would have abolished county judges' courts, did not make a ballot position.
These courts had different jurisdictions. The County Judges have included in their powers, the "jurisidction of the settlement of the estates of decedents and minors, to order the sale of real estate of decedents and minors, to take probate of wills, to grant letters testamentary and of administration and guardianship, and to discharge the duties usually pertaining to courts of probate. He shall have the power of a committing magistrate and shall issue all licenses required by law to be issued in the county." (1885, Art. V, Sec. 17.) The jurisdiction of County Courts is given in F.S. 34.01.
"Fla. 1955. County courts and county judge's courts are separate and distinct constitutional courts and statute conferring upon Supreme Court power to prescribe, inter alia, practice and procedure in civil courts of record, circuit courts and county courts, confers no power with respect to county judge's courts. F.S.A. § 25.47; F.S.A. Const. art. 5, § 1.--In re McRae's Estate, 73 So.2d 818." (4 Fla D, Courts, § 183.)
"Atty.Gen. 1950. State common law rules adopted by Supreme Court pursuant to authority granted under F.S.A. § 25.47, are not applicable to common law proceedings in county judge's courts.--1950 Op.Atty.Gen. 31." (4 Fla D, § 184.)
"County court did not have juridiction to try petitioner or to sentence him for felony of leaving the scene of an accident involving personal injury." (Sclafani v. Dade County, App. 3 Dist., 323 So.2d 675 (1975).) [F.S.A. Const. Art. 5 § 6, nts. 7.]
"County court had jurisdiction to find petitioner guilty and sentence him for careless driving charge and for leaving the scene of an accident involving property damage." (Sclafani v. Dade County, App. 3 Dist., 323 So.2d 675 (1975).) [F.S.A. Const. Art. 5 § 6, nts. 7.]
Terms
"The time for holding court is ordinarily prescribed by law. This is true of the Supreme Court, the circuit courts, the courts of record, and the county courts. The trial terms of courts of justices of the peace are held on such day as is designated by the judge or justices thereof, though written notice must be given of the day fixed. The terms of the county judges' courts are established in the same manner. In the event the law prescribes no time for the holding of a regularly established court, it would appear that the judge may hold it as often as he chooses." (8 Fla. Jur. (1963 Reprint), Courts, s. 30.)
The terms of County Courts were four times per year as prescribed by the act or acts creating such courts, providing that misdemeanor cases the defendant and prosecuting attorney may agree to waive trial by jury, such cases may be heard in vacation (see 34.02 prior to 1972). In 1972, the terms as prescribed by Chapter 4406, Acts 1895, in the Florida Statutes was repealed by chapter 72-404, section 30. (Notice that chapter 4406 is not referenced in the table below, that act being applicable to "County Courts in the State", or applicable in the administrative/commercial internal government over the commercial actions of the State of Florida, as opposed to the 'de jure' government of Florida over the People thereof.)
"A court created by statute may be abolished by the repeal of the statute which created it; any action a court takes after its legislative abolishment is the action of a court without jurisdiction and is therefore legally void. A statutory court may be abolished by a later constitutional enactment which effectively repeals its basic statute." (20 Am Jur 2d, Courts, s. 7.)
"Whenever a statute from which a court derives its jurisdiction in a particular case is repealed, the court cannot proceed under the repealed statute, even in suits pending at the time of the repeal, in the absence of a saving clause in repealing statute with respect to pending suits." (Fort Smith Gas Co. v. Kincannon, 150 S.W.2d. 968 (Ark., 1941).) [20 Am. Jur. 2d, Courts, s. 8.]
It does not appear that the basic laws allowing County Courts has been repealed, just the part setting the terms, which makes it appear they are acting "in vacation". County Courts must therefore be sitting in vacation.
Vacation
"Generally, the court may not render a judgement while it is in vacation unless authorized by statute. However, a court may conduct a recidivism sentencing hearing and pass sentence during its vacation period." (20 Am Jur 2d, Courts, s. 24.)
"While it has been held that a court has no power to act officially except during a legal term, most courts recognize the validity of orders made by a judge during vacation in connection with the cases arising during term."
"It should also be pointed out that the courts are expressly given the power to hear cretain kinds of proceedings, though not sitting during a regular term. Thus, a circuit court, whether in term or in vacation, has the power to hear proceedings in prohibition, an application for habeas corpus, or a trial of eminent domain proceedings. Such courts also have the power, either in term on in vacation at chambers to remove the disabilities or nonage minors. And these courts must always be kept open for the issuing and return of process, making, hearing, and deciding motions, presenting and deciding petitions, granting injunctions, and passing interlocutory and final decrees and orders. Action taken in such matters during vacation has the same force and effect as if done in term time."
"An information in a criminal case may be filed with the clerk of the criminal court of record, though the court is in vacation, and misdemeanor cases may be heard in the couty court during vacation where the defendant and prosecuting attorney agree to waive trial by jury." (8 Fla Jur, Courts, s. 38.)
County Judges Today
According to 34.021(4), Florida Statutes, a county judge may serve as a county court judge under certain conditions.
Today, the county court judges change venue once a year, choosing who will provide the services of guardianship and probate.
Creation of County Courts
Here is a compilation of all local laws pertaining to County Courts, from “Index To Special And Local Laws, 1845-1970”. prepared by Joint Legislative Management Committee, Division of Statutory Revision and Indexing, and “Index To Special And Local Laws 1971-1999”, prepared by Office of Legislative Services, Division of Statutory Revision.
| COUNTY | CREATED | ABOLISHED | TERMS |
| Year/Chapter | Year/Chapter | Year/Chapter | |
| Alachua | 1893c4217 | 1899c4766 | 1870c1743 |
| Baker | -- | -- | 1870c1743 |
| Bay | 1915c6986 | 1917c7420 | -- |
| Bradford | -- | -- | 1870c1743 |
| Brevard | 1889c3933 | 1907c5763 | 1870c1743 |
| Broward | 1915c6983 | 59-877 | -- |
| Calhoun | 1915c6993 1937c18443 |
1918c7763 | 1917c7435 |
| Charlotte | 1951c26711 | -- | 1951c26711 |
| Citrus | 1893c4218 | 1897c4581 | -- |
| Clay | 1927c11919 | -- | 1870c1743 |
| Collier | -- | -- | -- |
| Columbia | 1893c4219 | 1895c4435 1897c4580 |
1870c1743 |
| Dade | 1895c4434 | 1927c11970 | 1870c1743 1905c5562 |
| DeSoto | 1893c4420 1909c5982 1915c7001 1917c7458 1949c25427 |
1895c4436 1911c6261 |
71-490 |
| Dixie | -- | -- | -- |
| Duval | 1903c5298 | -- | 1870c1743 |
| Escambia | 1909c5983 | 1913c6582 | 1870c1743 |
| Flagler | -- | -- | -- |
| Franklin | -- | -- | 1870c1743 |
| Gadsden | 1909c5984 1911c6267 1941c21252 |
-- | 1870c1743 1941c21252 |
| Gilchrist | -- | -- | -- |
| Glades | 1923c9345 | 1925c10067 | -- |
| Gulf | -- | -- | -- |
| Hamilton | -- | -- | 1870c1743 |
| Hardee | 1949c25014 | -- | 1949c25014 |
| Hendry | 1939c19456 | -- | -- |
| Hernando | -- | -- | 1870c1743 |
| Highlands | -- | -- | -- |
| Hillsborough | 1909c5987 75-400 79-479 93-314 |
65-1010 | 1870c1743 1909c5987 1915c7027 |
| Holmes | -- | -- | 1870c1743 |
| Indian River | 1925c10072 | -- | 1925c10072 1925c11361 |
| Jackson | 1905c5564 1907c5766 |
-- | 1870c1743 |
| Jefferson | 1915c7032 | -- | 1870c1743 1915c7032 1919c7848 1919c8076 |
| Lafayette | 1907c5767 | 1911c6277 | 1870c1743 1907c5767 |
| Lake | -- | -- | -- |
| Lee | 1923c9335 | -- | -- |
| Leon | 1935c16918 | -- | 1870c1743 |
| Levy | -- | -- | 1870c1743 |
| Liberty | 1915c7050 | 1917c7517 1917c7518 |
1870c1743 |
| Madison | 1941c21363 | -- | 1870c1743 |
| Manatee | 1901c4906 1907c5768 |
1903c5299 | 1870c1743 1901c4906 1907c5769 1915c7053 |
| Marion | -- | -- | 1870c1743 |
| Martin | 1925c10071 | -- | 1870c1743 |
| Monroe | -- | -- | 1870c1743 |
| Nassau | 1929c13607 | -- | 1870c1743 |
| Okaloosa | -- | -- | -- |
| Okeechobee | 1925c11362 | -- | -- |
| Orange | 1925c10299 71-442 |
-- | 1870c1743 |
| Osceola | 1907c5770 | -- | 1917c7550 1919c8142 |
| Palm Beach | 1913c6630 | -- | 1913c6630 |
| Pasco | 1911c6295 1917c7563 1951c26812 |
1913c6633 1945c22837 |
-- |
| Pinellas | 1913c6635 1921c8490 65-893 |
1915c7085 1951c27258 |
1913c6635 1921c8420 1937c18787 65-893 |
| Polk | 1893c4221 | -- | 1870c1743 |
| Putnam | -- | -- | 1870c1743 |
| Santa Rosa | -- | -- | 1870c1743 |
| Sarasota | 1921c8838 | -- | 1953c28562 |
| Seminole | 1923c9344 | -- | -- |
| St. Johns | -- | -- | 1870c1743 |
| St. Lucie | 1909c6014 1917c7592 |
1911c6303 | -- |
| Sumter | 1933 | -- | 1870c1743 |
| Suwannee | 1893c4222 | 1895c4377 | 1870c1743 |
| Taylor | 1907c5772 | -- | 1870c1743 |
| Union | -- | -- | -- |
| Volusia | -- | -- | 1870c1743 |
| Wakulla | -- | -- | 1870c1743 |
| Walton | 1870c1743 67-1061 |
-- | 1870c1743 |
| Washington | 1905c5565 1909c6019 1911c6317 |
1915c7121 | 1870c1743 1905c5565 |
Another reference source is the "1947 Cumulative Supplemement to Volume I" of the Florida Statutes of 1941. See Title page, Copyright page, Preface and Foreward, and the "Table of Certain Inferior Courts and Their Terms" at pages 764, 765, 766, 767, and 768.
Notice that not all counties have had County Courts established therein and some county courts which once had been created were later abolished.
In Laws of Florida, 1915, Chapter 6904, Civil Courts of Record were established for counties with a population exceeding 70,000 whereupon any county court in such county was abolished. Even though Chapter 8521, Laws of Florida, 1921, repealed Chapter 6904, any county courts which had been abolished by Chapter 6904 would not be revived; the principal being that laws repealing other laws which are then themselves repealed does not act to revived the formerly repealed law. One would need to refer to census data to know whether the various county courts might have been abolished by Chapter 6904. But Broward, Dade, Glades, Hillsborough, Pasco and Pinellas counties are sure to have county courts established, since there are acts establishing them after 1921. It is also interesting to note that Chapter 11357 (1925), established Civil Courts of Record for Counties in the State of Florida - or administrative courts (or so it appears to me).
In 1971, chapter 71-29, approved May 12, 1971, many local laws were repealed to forestall questions of their constitutionality, starting from acts of 1921 through acts of 1970. But laws relating to courts were made general laws and directed to be incorporated into the next edition of the Florida statutes. But Chapter 71-978, approved December 16th, 1971, removed the requirement directed at the legislative service bureau for updating the Florida Statutes. This effectively hid from users of the Florida Statutes many underlying laws regarding courts.
By SJR 52-D (Dec. 11, 1971), Section 20(f), the county court judges were assigned the nonjudicial duties required of the county judges. This was adopted by the election of 3-14-72.
By Chapter 72-404, Laws of Florida, 1972, chapter 36, Florida Statutes, relating to County Judges' Court was repealed, as were the terms for the County Courts per F.S. 34.02, which were rooted in chapter 4406, Section 1, Laws 1895. Also by the act 72-404, all authority exercised and duties performed by County Judges pursuant to general law with regard to the issuance of hunting and fishing licenses were tansferred to the Tax Collector of the county (Section 18(1)).
By Chapter 72-406, the number of county court judges in each county was set, though this has been modified many times afterwards.
Territorial Extent; Venue
"A court created within and for a particular territory in the state is bound in the exercise of its powers by the limits of such territory." (8 Fla Jur, Courts, s. 86.)
"A court created within and for a particular territory is, in the absence of a constitutional or statutory provision giving it extraterritorial jurisdiction, limited in its jurisdiction to that particular territory. Although there is authority for the view that if a court is held at a place not fixed by law its decision is therefore rendered void, or at least reversible, particularly where the court has exercised jurisdiction beyond its territorial limits, there is also authority for the view that the irregularity of holding court at a place other than that prescribed by law does not necessarily render the proceeding void or a decision reached reversible." (20 Am Jur 2d, Courts, s. 16.)
"Generally, a state constitutional of statutory provision fixes the permanent physical location for the conduct of court, such as at the county seat, from which location the court generally may not deviate. However, it is not improper for a court to sit at a place outside a county seat where a statute so provides" (20 Am Jur 2d, Courts, s. 17.)
De facto courts
"When a court is organized under color of law, that is, when its creation is authorized by law but the proceedings creating it are irregular or defective, it is a de facto court. The judgements and proceedings of such a de facto court are valid and are not open to collateral attack." (20 Am Jur 2d, Courts, s. 3.)
"The conviction of a criminal defendant who was convicted in an invalidly created department of a court was allowed to stand where the defendant conceded that the judge had de facto authority. In re Application of Eng, 113 Wash 2d 178, 776 P2d 1336." (20 Am Jur 2d, Courts, s. 3, fn. 28.)
Some Important Laws Regarding Courts
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AN ACT to Regulate the Terms of the County Courts in this State, and to Prescribe the Duties and Compensation of the Officers Thereof.
Be it enacted by the Legislature of the State of Florida:
SECTION 1. The terms of the county courts now existing, or which may hereafter exist under the laws of this State, shall be held four times a year at such times as the act or acts creating such courts shall designate; Provided, That in cases of misdemeanors, where the defendant and prosecuting attorney may agree to waive trial by jury, such cases may be heard in vacation.
SEC. 2. The salary of the county judge shall be three hundred dollars per annum. He shall also have a docket fee of one dollar in civil cases, to be taxed as other costs in the case. That pf the prosecuting attorney shall be four hundred dollars, together with a conviction fee of five dollars in each case, as now provided by law.
SEC 3. Informations may be filed by the prosecuting attorney at all times during his term of office. The judge of said court shall have power to appoint an acting prosecuting attorney for said court in case of the absence or disqualification for any cause of the prosecuting attorney, who shall receive the same conviction fees as the prosecuting attorney.
SEC. 4. All laws or parts of laws conflicting with the provisions of this act are hereby repealed.
SEC 5. This act shall take effect immediately upon its passage and approval by the Governor.
Approved May 25, 1895.
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CHAPTER 1,743.--[No. 13.]
AN ACT Designating the Days for Holding the County Courts of the Several Counties of the State.
The people of the State of Florida, represented in Senate and Assembly, do enact as follows: SECTION 1. That from and after the first of April next, the terms of the several county courts of this Satte shall be as follows: For Escambia, Gadsden, Hamilton, St. Johns, and Alachua, on the first Mondays in January, March, May, July, September, and November; for Santa Rosa, Liberty, Suwannee, Nassua, Sumter, and Manatee, on the second Mondays in January, March, May, July, September, and November; for Walton, Wakulla, LaFayette, Clay, Brevard, and Monroe, on the third Mondays in January, March, May, July, September, and November; for Holmes, Leon, Baker, Volusia, Dade, and Hernando, on the fourth Mondays in January, March, May, July, September, and November; for Jackson, Jefferson, Bradford, Orange, Levy, and Hillborough, on the first Mondays in February, April, June, August, October, and December; for Calhoun, Madison, Duval, and Marion, on the second Mondays in February, April, June, August, October, and December; for Franklin, Columbia, Putnam, and Polk, on the third Mondays in Februsary, April, June, August, October, and December; for Washington, Taylor, and all new counties that may organize, on the fourth Mondays in February, April, June, August, October, and December; Provided, however, When the day established by law in any county for holding the circuit courts and the day established above be the same, then, and in that case, the county courts shall in such county be held on the Monday preceding the Monday upon which it would have been held.
SEC. 2. Be it further enacted, That all laws and parts of laws conflicting with the true intent and meaning of this act be, and the same are hereby, repealed.
Approved February 18, 1870.
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CHAPTER 72-406
House Bill No. 1-F
AN ACT relating to the judiciary; providing for the number, election and salary of county court judges; providing for a uniform case reporting system; providing for assignment of judges to geographical area; providing for concurrent jurisdiction; providing a severability clause; providing an effective date.
Be It Enacted by the Legislature of the State of Florida:
Section 1. The number of county court judges in each county shall be as follows:
CIRCUIT COUNTY NUMBER OF JUDGES First Escambia 3 Okaloosa 1 Santa Rosa 1 Walton 1 Second Franklin 1 Gadsden 1 Jefferson 1 Leon 2 Liberty 1 Wakulla 1 Third Columbia 1 Dixie 1 Hamilton 1 Lafayette 1 Madison 1 Suwannee 1 Taylor 1 Fourth Clay 1 Duval 10 Nassau 1 Fifth Citrus 1 Hernando 1 Lake 2 Marion 1 Sumter 1 Sixth Pasco 1 Pinellas 5 Seventh Flagler 1 Putnam 1 St. Johns 1 Volusia 3 Eighth Alachua 2 Baker 1 Bradford 1 Gilchrist 1 Levy 1 Union 1 Ninth Orange 6 Osceola 1 Tenth Hardee 1 Highlands 1 Polk 4 Eleventh Dade 23 Twelfth DeSoto 1 Manatee 1 Sarasota 2 Thirteenth Hillsborough 5 Fourteenth Bay 1 Calhoun 1 Gulf 1 Holmes 1 Jackson 1 Washington 1 Fifteenth Palm Beach 5 Sixteenth Monroe 2 Seventeenth Broward 7 Eighteenth Brevard 3 Seminole 1 Nineteenth Indian River 1 Martin 1 Okeechobee 1 St. Lucie 1 Twentieth Charlotte 1 Collier 1 Glades 1 Hendry 1 Lee 1In the following counties, there shall be additional county court judges as indicated, where the most populous municipality in each county takes official action prior to June 1, 1972 to abolish its municipal court and place all its jurisdiction into the county court:
Dade 1 Escambia 1 Hillsborough 3 Lee 1 Manatee 1 Okaloosa 1 Pasco 1 Seminole 1 Pinellas 3In each such county, the most populous municipality is granted the power to abolish its court, the conflicting provisions of other statutes notwithstanding. Such abolition shall be effective on the effective date of Senate Joint Resolution 52-D. Such municipality shall notify the Secretary of State by June 15, 1972 if any municipal judge is elected for a term extending beyond January 2, 1973.
Section 2. All these judges except those who automatically become county court judges pursuant to section 20(d)(5) of Senate Joint Resolution 52-D, shall be elected in the non-partisan elections in 1972 and shall take office on the first Tuesday after the first Monday in January, 1973.
Section 3. County court judges shall receive the following salary to be paid by the state:
County court judges in counties having a population of 40,000 or less according to the last decennial census $24,000
County court judges in counties having a population of more than 40,000 according to the last decennial census $28,000
Section 4. In all counties in which there is created only one county court judge, in addition to that one position, the judges holding elective office in courts abolished by the revision of Article V, who are not elevated to circuit court and whose terms do not expire in 1973 shall serve as judges of the county court for the remainder of the term to which they were elected. At the end of the term of such offices or upon a vacancy in such office, whichever occurs sooner, the office shall stand abolished. Compensation for these offices shall be paid by the county in amount to be determined by the county.
Section 5. Uniform case reporting system.--* * *
Section 6. Assignment of judges to geographical area.--* * *
Section 7. The county court shall have jurisdiction concurrent with the circuit to consider landlord and tenant cases involving claims in amounts which are within its juridictional limitations.
Section 8. It is declared to be the legislative intent that, if any section, subsection, sentence, clause, or provision of this act is held invalid, the remainder of the act shall not be affected.
Section 9. This act shall take effect on the effective date of Senate Joint Resolution 52-D,the revision of Article V of the state constitution, except the election of judges as provided in this act shall be at the time provided in this act and except section 6 shall take effect upon becoming law.
Approved by the Governor April 26, 1972.
Filed in Office Secretary of State April 26, 1972.
These revisions were contained in the 1972 Supplement to the Florida Statutes, 1971, as section 34.022, but subsection 2, regarding municipalites in certain counties transferring their jurisdictions to the county courts, was removed by chapters 73-329 and 73-333 (Laws, 1973) from the Florida Statutes of 1973.
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CHAPTER 6904--(No. 98)
AN ACT Creating Civil Courts of Record, Prescribing Their Jurisdiction and Abolishing County Courts in Every County Having a Civil Court of Record, Providing for Judges and Clerks of Civil Courts of Record and Prescribing the Jurisdiction of the Supreme Court and Circuit Courts in Relation to Civil Courts of Record.
Be It Enacted by the Legislature of the State of Florida:
Section 1. From and after the passage of this Act there shall be a Court to be known as the Civil Court of Record in each County which has, or shall have, a population of more than seventy thousand (70,000) according to the last preceding Federal census, or as such census hereafter taken; * * *
* * *
Sec 9. In any county where a Civil Court of Record is established by the Act, and in which county there is now a County Court, such County Court shall be hereby abolished, and all of its jurisdiction and powers shall cease and determine at six o'clock A. M. Central Standard time, on the day this Act shall go into effect.
* * *
Sec. 15. In any county where there is a County Court at the time a Civil Court of Record is established therein, the Civil Court of Record shall have the jurisdiction of all cases which may then be pending in County Court.
Sec. 16. All laws and parts of laws in conflict with this Act, be and the same are hereby repealed.
Sec. 17. This Act shall take effect June 14, 1915.
Approved June 3, 1915.
This act was repealed by Chapter 8521 (1921).
CHAPTER 8521--(No. 126).
AN ACT Creating Civil Courts of Record in Counties Having, or Which Shall Have, a Population of More Than One Hundred Thousand, According to the Last Preceding Federal Census, or as Such Federal Census Is Hereafter Taken; Defining and Prescribing the Powers and Jurisdiction of Said Court; Providing for Judges and Clerks of Civil Courts of Record, and the Jurisdiction of the Supreme Court and Circuit Courts in Relation to Civil Courts of Record; ABolishing the Civil Court Created Under the Act Aproved June 3rd, 1915, and Repealing Said Act, and Also Repealing Sections 3310 to 3324, Both Inclusive, of the Revised General Statutes of Florida, Relating to Civil Courts of Record, and Also All Acts in Conflict Herewith:
* * *
Sec. 16. This Act shall take effect immediately upon its passage and approval by the Governor.
Approved April 29, 1921.
There were also established civil courts of record for counties in the State of Florida:
CHAPTER 11357--(No. 22).
AN ACT Creating Civil Courts of Records in all Counties in the State of Florida having a population of more than One Hundred Thousand (100,000) inhabitants according to the last State Census, and Which said Counties have no Civil Court of Record yet Established. Prescribing the Jurisdiction of said Courts, Providing for the Judges and the Clerks of said Civil Courts of Record, and prescribing for the jurisdiction of the Supreme COurt and the Circuit Courts in relation to the Civil Courts of Record.
Be It Enacted by the Legislature of the State of Florida:
* * *
Sec. 14. All laws and parts of laws in conflict with this act, be and the same are hereby repealed.
Sec. 15. This act shall take effect January first, A. D. 1926.
Approved November 30, 1925.
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