Bateh v. State

• Decision Date: 01 April 1958
• Docket Number: No. A-101,A-101
• Citation: 101 So.2d 869
• Court: Florida District Court of Appeals
• Parties: Mussa C. BATEH, Appellant, v. STATE of Florida, Appellee.

Page 869

101 So.2d 869

Mussa C. BATEH, Appellant, v. STATE of Florida, Appellee.

No. A-101.

District Court of Appeal of Florida, First District.

April 1, 1958.

Rehearing Denied April 29, 1958.

Rehearing Opinion as Revised June 26, 1948.

Larkin & Lewis, Jacksonville, for appellant.

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

WIGGINTON, Justice.

This is an appeal from judgment of conviction and sentence imposed by the Criminal Court of Record of Duval County in a case arising under Chapter 398, Florida Statutes. F.S.A.

On August 30, 1955, appellant was informed against and charged in two counts with violating the provisions of F.S. § 398.09 and Sec. 398.10, F.S.A., and upon arraignment entered a plea of nolo contendere. On November 3, 1955, he was adjudged guilty as charged. The trial court ordered that '* * * the passing of sentence herein be deferred from day to day and term to term until finally disposed of and the Court herein expressly reserves jurisdiction of this cause to impose sentence herein at a later date as the Court may deem advisable.' Appellant was thereupon 'released on (his) own recognizance.' Thereafter, on December 18, 1956, appellant was brought before the court and a supplemental order was entered whereby the prior order of November 3, 1955, was 'vacated and set aside' and sentence of two years in the state prison was imposed.

Appellant here challenges the trial court's authority to defer sentence indefinitely, and asserts that the order of November 3, 1955, violates due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution, and the Declaration of Rights of the Florida Constitution F.S.A. He therefore contends that such order was ineffectual insofar as it purported to continue the trial court's jurisdiction for the purpose of permitting it to impose the sentence contained in its order of December 18, 1956.

The practice of deferring the imposition of sentence upon persons convicted of criminal offenses had its origin in the common law courts of England at a time when the laws of England did not permit motions for a new trial grounded upon the insufficiency of the evidence, or for alleged errors during the course of the proceedings. There the trial courts assumed authority to temporarily suspend the imposition or execution of sentence by the issuance of a reprieve. ¹ Such a reprieve was only temporary and granted in the court's discretion for the accomplishment of some lawful purpose. ² These courts neither possessed nor claimed the right to indefinitely suspend the imposition or execution of sentence and thereby nullify the penalty lawfully prescribed upon conviction

This practice subsequently became engrafted upon the jurisprudence of some of the United States without affirmative recognition of any common law doctrine in support thereof and without regard to any legislative provisions for probation. Temporary deferment was utilized to afford time for a motion for new trial or in arrest of judgment; an application for pardon, or to enable the trial judge to conduct such pre-sentence investigation as may be necessary to the imposition of a proper sentence; and also where such action became expedient due to the pendency of another charge. Such procedure eventually came to be accepted by conscientious trial judges as a means of meeting modern notions regarding the treatment and rehabilitation of those who stood convicted for violation of the law. Having been once asserted, the practice continued solely as the result of prior precedent. ³

The first approval of a deferred sentence recorded in this jurisdiction appears in Ex parte Williams, Decided in 1890, ⁴ wherein our Supreme Court observed ad dictum '* * * that sentence may be suspended on conviction of an offender, because of mitigating circumstances, or the pendency of another indictment, or other sufficient cause, is not denied, and in practice is frequently done in this state, and in other states is held to be permissible.' It is to be noted that this affirmation relates to suspensions which are temporary and for sufficient cause, without regard to statutory or inherent authority but predicated upon the bare assertion that such had been the practice.

Later, in 1907, the Supreme Court, again in dictum, acknowledge the right of Florida trial courts within definitely restricted limitations, to suspend the imposition of sentence. ⁵ But, 'The power of such a court to suspend the execution of a sentence already lawfully imposed, except for purposes of giving effect to an appeal, or where cumulative sentences are imposed, and perhaps in some case of necessity, or emergency, presents another question. It seems to us the weight of reason and authority is against the existence of such a power, especially where, as with us, exclusive control over the subject of pardons and the commutation and mitigation of penalties is lodged by our Constitution in other officials than the judges of the courts.' ⁶ These decisions recognize no reason which supports a distinction between the court's authority to indefinitely defer sentence, and its power to indefinitely suspend the execution of sentence.

In the subsequent development of our jurisprudence trial courts, in the interest of justice, attempted by the practice of deferring imposition of sentence to administer a system of unsupervised probation without facilities or funds necessary to accomplish the purpose which probation is intended to serve. In recognition of the desirable object of such practice, the Supreme Court, in 1932, held ⁷ that the trial court was authorized to suspend the imposition of sentence after judgment of conviction 'from day to day and term to term'. It is here noted that this holding was based upon the Williams case, supra, and concerned a situation in which the trial court entered its judgment of conviction during the April Term of court, which ended June 8, 1931, and imposed sentence at the succeeding term on September 29, 1931. The latter order was attacked on the ground that the trial court was without jurisdiction to impose sentence after adjournment for the Term during which conviction and judgment had been entered upon the record. A similar holding is reported in a decision rendered by the Supreme Court in 1938. ⁸

In Bronson v. State ⁹, decided in 1941, the defendant had been adjudged guilty. Judgment of conviction was entered, sentence was suspended and defendant was paroled into the custody of the probation officer of the court for a period of one year. The trial court subsequently revoked its probation order and sentence the defendant to six months in the county jail. After observing that the record contained no evidence that the judge abused a sound judicial discretion '* * * in revoking the custody and imposing a lawful sentence * * *', the Supreme Court stated: 'There is nothing in the statutes to limit or restrain the court's inherent power to suspend pronouncement of sentence, once having entered a judgment of conviction upon a plea of guilty, or to prevent the imposition of the sentence pronounced in this case.' In support of this proposition the Court relied upon its former decisions as sent forth above; and for the first time a suspension of sentence was claimed as a valid exercise of the trial court's inherent power.

The inherent power doctrine was again applied in Pinkney v. State ¹⁰ in which case the Supreme Court observed: 'It has always been the law of this jurisdiction that, except in cases involving suspension of the imposition of sentence on terms and conditions to be kept or observed by a defendant, or of cases involving probation under the statutes, a trial judge who has deferred the imposition of sentence upon a defendant may proceed to impose sentence upon him at any time, either during the term in which guilt is admitted or established or at a later term, without the necessity of first according to the defendant a hearing on the question of his good behavior.'

It is apparent from the foregoing authority that the power of a trial court to suspend the imposition of sentence was originally approved under circumstances in which a temporary deferment was employed to permit accomplishment of some lawful purpose consistent with the ends of justice. By repeated practice these limitations became eroded and disregarded until the right to indefinitely postpone the imposition of a sentence came to be a recognized 'inherent' power. It is significant that in none of the cases through which this practice evolved has the Court been called upon to test its conformity to the state or federal constitutional guarantees of due process and a speedy trial. ¹¹ Nor has the practice of indefinite defement been reconciled with the exclusive power of the executive department of our state government to grant pardons and the equally exclusive delegation of the power to enact laws to the Legislature.

It is inescapable that any order which indefinitely suspends the imposition of a lawful sentence or stays the execution of such sentence after it has been imposed has the effect of either nullifying the law, or of placing the convicted party on probation, or awarding a conditional pardon. In the earlier development of this practice our trial courts were doubtless motivated by the philosophy that one convicted of a crime should not suffer the severe penalty prescribed by law, if, in the court's sound discretion the probable future conduct of the defendant, the ends of justice and the welfare of society warranted action by the court to effect a rehabilition of the convicted party through a suspended sentence. Such a philosophy is, we believe, inconsistent with the doctrine which vests the law-making authority in the legislative branch of our government and the power to pardon in the executive. It has long been the law in this State: That 'in all cases the court shall award the sentence and...