Anglin v. Mayo

• Decision Date: 13 July 1956
• Citation: 88 So.2d 918
• Parties: Leonard C. ANGLIN, Appellant, v. Nathan MAYO, Custodian, Florida State Prison, Appellee.
• Court: Florida Supreme Court

Page 918

88 So.2d 918

Leonard C. ANGLIN, Appellant, v. Nathan MAYO, Custodian, Florida State Prison, Appellee.

Supreme Court of Florida, Special Division A.

July 13, 1956.

Leonard C. Anglin, in pro. per., for appellant.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.

THORNAL, Justice.

Appellant Anglin, who was petitioner below in a habeas corpus proceeding, seeks reversal of an order of the trial judge denying the writ and remanding him to the custody of the appellee, Custodian of the Florida State Prison.

The point for determination on this appeal is the legality of the sentence of the appellant in view of the apparent inconsistencies between Section 811.301, Florida Statutes, F.S.A. and Section 817.01, Florida Statutes, F.S.A.

Appellant Anglin was informed against in the Circuit Court for Franklin County by an information in two counts, reading in part as follows:

'Leonard C. Anglin, did then and there designedly by false pretense, and with intent to defraud, obtain from another person property, to-wit: $10.00 from Ella Livingston and $10.00 from Gertrude Lee and $5.00 from Donella Beverly by promising to heal their illness and infirmities and then obsconding [sic] with their money, knowing that his promises to heal were false.

'Second Count:

'Leonard C. Anglin, did then and there practice the healing art without first having obtained a certificate or proficiency in the basic sciences, by professing to heal Ella Livingston for the sum of $10.00 and Gertrude Lee for the sum of $10.00 and Donella Beverly for the sum of $5.00.'

Upon arraignment he pleaded guilty to the offense condemned by the first count and the second count was nolle prosequied. On September 26, 1955, he was sentenced to five years imprisonment in the State Prison under the first count of the information. When he began serving the sentence does not appear from the record. On March 26, 1956, appellant, without benefit of counsel, filed in the Circuit Court for Union County his petition for writ of habeas corpus contending that the information pursuant to which he was convicted was defective and that he had been denied counsel as well as a trial by jury. After hearing the matter, the Circuit Judge on April 14, 1956, found that the questions raised by the petition were not sufficient to justify the issuance of the writ of habeas corpus. The Judge thereupon denied the writ and granted to the appellant the right of appeal. Reversal of this order denying the writ is sought by this appeal.

By his brief filed in propria persona the appellant contends that the writ should have issued. By its original brief, the State contended that the court below properly denied the writ. However, by a supplemental brief, as we shall see, the Attorney General, with an admirable sense of justice, concedes that error was committed in the original sentence.

We have carefully reviewed the record presented to the trial judge in the habeas corpus proceeding. In fairness to him it should be stated here that the proposition of law announced by this opinion as the basis for reversal was not presented for his consideration. We find that on the questions actually presented to him, he ruled correctly. However, when the record and briefs came to this court for consideration, our examination thereof indicated that there was implicit in the original sentence an error which requires reversal even though the point was not presented below and was not originally argued here. It was at this stage that the appellant and the State were requested by this court ex mero motu to submit briefs on the legal problem which we hereafter discuss, and by the supplemental brief filed pursuant to this request, the State now concedes error in the sentence.

Ordinarily this court considers on appeal only those questions tendered by the record and argued by the parties in their briefs on the basis of errors properly assigned. However, historically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic process. The procedure for the granting of this particular writ it not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint. So it is in the case at bar that this court felt justified in raising on its own initiative the question of law hereafter discussed.

In the original brief filed here the State contended that the appellant pleaded guilty of the offense defined by Section 817.01, Florida Statutes, F.S.A., which reads in part as follows:

'Whoever designedly by a false pretense, or by a privy or false token, and with intent to defraud, obtains from another person any property, or obtains with such intent the signature of any person to a written instrument, the false making whereof would be punishable as forgery, shall be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five hundred dollars.'

It should be noted that the penalty for violation of this Statute is imprisonment for not more than ten years or fine not exceeding $500. This Act was in the books for many years prior to 1951. Our own examination of the record, however, suggested a consideration of the effect of the passage of Chapter 26912, Laws of Florida, 1951, now cited as Section 811.021, Florida Statutes, F.S.A., upon the pre-existing Statute which we continue to cite as Section 817.01, Florida Statutes, F.S.A., and which continues to be included in the biennial revision of the Florida Statutes through 1955. Chapter 26912, Laws of Florida, 1951, Section 811.021, Florida Statutes, F.S.A., reads in part as follows:

'(1) A person who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person:

'(a) Takes from the possession of the true owner, or of any other person; or obtains from such person possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing; or obtains the signature of any person to a written instrument, the false making whereof would be punishable as forgery; or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, goods and chattels, thing in action, evidence of debt, contract, or property, or article of value of any kind; * * *

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'(3) If the value of the property stolen as mentioned in the preceding section is less than fifty dollars the offender shall be deemed guilty of petit larceny and upon conviction, shall be punished by imprisonment in the county jail not exceeding six months or by fine not exceeding three hundred dollars.'

It is perfectly clear that Chapter 26912, supra, was a legislative revision of the laws condemning the offense of larceny by redefining various offenses theretofore defined by certain sections of our Statutes. It is also clear that the offense condemned by paragraph (1)(a)...