Blackwelder v. Morris

• Citation: 89 Fla. 87,103 So. 124
• Parties: BLACKWELDER v. MORRIS, Sheriff.
• Decision Date: 05 February 1925
• Court: United States State Supreme Court of Florida

103 So. 124

89 Fla. 87

BLACKWELDER v. MORRIS, Sheriff.

Florida Supreme Court

February 5, 1925

En Banc.

Error to Circuit Court, Volusia County; J. J. Dickinson, Judge.

Habeas corpus proceedings by E. H. Blackwelder, against Lee Morris Sheriff of Volusia County. Final order remanding petitioner for purpose of proper sentence was entered, and the brings error.

Affirmed.

(Syllabus of the Court.)

COUNSEL

Stewart & Stewart, of Deland, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for defendant in error.

OPINION

WHITFIELD, J.

This writ of error was taken to a final order in habeas corpus proceedings remanding the petitioner 'for the purpose of proper sentence in accordance with the provisions of law.'

It appears that the county judge rendered the following judgment:

'In County Judge's Court, Volusia County, Florida.

'State of Florida v. E. H. Blackwelder.

'Charge: Reckless operation of automobile while intoxicated.

'Plea: Not guilty.

'Verdict: Guilty.

'You, E. H. Blackwelder, having entered a plea of not guilty of the offense of reckless operation of automobile while intoxicated, the court deems and adjudges you to be guilty of said offense.

'Comes now the defendant in person, whereupon it is considered and adjudged by the court that you, E. H. Blackwelder, for the offense of which you have been and stand convicted, do pay a fine to two hundred fifty dollars, and the costs of prosecution now here taxed at fifty and 27/100 dollars, in default of which payment you be confined in the county jail of Volusia county, at hard labor for a period of 3 months, sentence to begin from this date and additional 3 months on default of payment of fine and costs.

'Done and ordered in open court this 25th day of August, A. D. 1923.

'[Official Seal.] J. E. Peacock,

'County Judge.

'I, J. E. Peacock, county judge in and for the county of Volusia and state of Florida, hereby certify that the within and foregoing is a true and correct copy of the original judgment in the case 'State of Florida, v. E. H. Blackwelder,' as the same appears on file in this office and of record in Criminal Docket Book, page 343.

'Witness my hand and seal of this court, this 16th day of June, A. D. 1924.

'[Seal.] J. E. Peacock, County Judge.'

It also appears that the judgment for fine and costs was paid, and that the petitioner is held in custody by the sheriff under the following issued as a commitment:

'In County Judge's Court, Volusia County, Florida.

'State of Florida v. E. H. Blackwelder.

'Charge: Operating automobile recklessly while under the influence of intoxicating liquor upon the highway and injuring the property of another.

'Plea: Not guilty.

'Verdict: Guilty.

'You, E. H. Blackwelder, having been found guilty by a jury of your countrymen of the offense of damaging the property of another while recklessly operating an automobile upon the public highways of the state of Florida, while in an intoxicated condition, the court deems and adjudges you guilty of such offense.

'Comes now the defendant in person, whereupon it is considered and adjudged by the court that you, E. H. Blackwelder, for the offense of which you have been and stand convicted, do pay a fine of two hundred fifty ($250.00) dollars, and the costs of prosecution now here taxed at fifty and 27/100 dollars, and, that you be confined in the county jail of Volusia county, Florida, at hard labor, for a period of three months, sentence to begin from this date; and that in default of the payment of the fine and costs heretofore imposed, to wit, the sum of $300.27, that you be confined in the county jail of Volusia county, Florida, at hard labor, for an additional period of three months, such sentence to begin at the expiration of the first sentence of imprisonment herein and heretofore imposed.

'Done and ordered and adjudged in open court this the 16th day of June, A. D. 1924.

'[Signed] J. E. Peacock, [Seal.]

'County Judge."

The statute under which the prosecution was had is as follows:

"It shall be unlawful for any person, while in an intoxicated condition, or under the influence of intoxicating liquors, to drive, operate, or cause to be driven or operated on or over the highways or streets or thoroughfares of the state of Florida any automobile, truck or vehicle or motorcycle or any other vehicle propelled by gasoline, gas, vapor, electricity, steam or other power. Any person convicted of a violation of this section shall be punished as provided herein. If any person under the influence of intoxicants or in an intoxicated condition, while operating said vehicle,

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