
    Claude W. MILLER, Sheriff of Brevard County, Florida, Petitioner, v. Harold A. JOHNSON, Respondent.
    No. 84-1610.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 1985.
    Rehearing Denied April 1, 1985.
    John W. Costigan and Keith C. Tischler of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for petitioner.
    
      Harold A. Johnson, pro se.
   ON PETITION FOR WRIT OF CERTIORARI

DAUKSCH, Judge.

This matter is before us on a petition for writ of certiorari to review the decision of the circuit court of Brevard County which, in its appellate capacity, affirmed a decision of the county court.

The issue is whether a criminal summons may be legally served on a Sunday. Section 48.20, Florida Statutes provides:

Service of process on Sunday. — Service or execution on Sunday of any writ, process, warrant, order or judgment is void and the person serving or executing, or causing it to be served or executed, is liable to the party aggrieved for damages for so doing as if he had done it without any process, writ, warrant, order or judgment. If affidavit is made by the person requesting service or execution that he has good reason to believe that any person liable to have any such writ, process, warrant, order or judgment served on him intends to escape from this state under protection of Sunday, any officer furnished with an order authorizing service or execution by the judge or magistrate of any incorporated town may serve or execute such writ, process, warrant, order, or judgment on Sunday, and it is as valid as if it had been done on any other day.

Section 901.10, Florida Statutes provides:

How summons served. — A summons shall be served in the same manner as a summons in a civil action.

Section 901.04, Florida Statutes provides:

Direction and execution of warrant.— Warrants shall be directed to all sheriffs of the state. A warrant shall be executed only by the sheriff of the county in which the arrest is made unless the arrest is made in fresh pursuit, in which event it may be executed by any sheriff who is advised of the existence of the warrant. An arrest may be made on any day and at any time of the day or night.

It is apparent that a summons and a warrant are two different items. According to section 901.09 a magistrate sometimes issues a summons instead of a warrant when a criminal complaint is made. According to section 901.10 a summons in a criminal action shall be served in the same manner as one in a civil action. Lastly, section 48.20 says civil process cannot be served on a Sunday. A summons is “process.” Since the legislature has said that all summons’ are to be served in the same manner, then a criminal summons cannot be served on a Sunday, just like a civil summons.

We decline to issue the Writ of Certiora-

Writ denied.

COWART, J., concurs.

COBB, C.J., dissents with opinion.

COBB, Chief Judge,

dissenting:

There is an obvious conflict between sections 48.20 and 901.04, Florida Statutes (1983), in regard to the execution (service) of arrest warrants on Sunday absent a special court order. In regard to this conflict, I agree with the state that section 901.04 has superseded the earlier statute (previously section 47.46). See 1956 Op. Atty.Gen. 327.

The question, then, is whether or not the legislature has drawn a distinction between the Sunday service of warrants and the Sunday service of criminal summonses because of the provision of section 901.10 that a criminal summons be served “in the same manner” as a summons in a civil action. To me, this language simply requires that a copy of the criminal summons, together with a copy of the complaint, should be delivered to the person to be served, or else said copies should be left at his usual place of abode with a person residing there who is fifteen years of age or older, in which event that person should be informed of the contents of the papers served, as required by section 48.031. The cross-reference note to section 48.031 under section 901.10, Florida Statutes Annotated (1983), clearly supports this interpretation. Nothing in the language of section 901.10 suggests the broad construction applied by the circuit court to encompass the Sunday restrictions of section 48.20.

Service of a criminal summons constitutes an arrest and means the accused has been taken into custody for purposes of the speedy trial rule. See Singletary v. State, 322 So.2d 551 (Fla.1975). It logically follows that such an arrest is governed by the provisions of section 901.04, not 48.20, in regard to an arrest on Sunday.

I would grant certiorari review and quash the order of the circuit court, acting in its appellate capacity, which held that a criminal summons is void if executed on Sunday.  