Brill v. State
| Decision Date | 18 November 1947 |
| Citation | 159 Fla. 682,32 So.2d 607 |
| Parties | BRILL v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied Dec. 11, 1947.
Appeal from Court of Record, Escambia County; Ernest E. mason judge.
Coe & Eggart, of Pensacola, for appellant.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
In November 1939 appellant was informed against in two counts in the Court of Record of Escambia County. In the first count he was charged with selling 'One pint of Moonshine whiskey, without having first obtained and procured and paid for a license from the State of Florida, authorizing him so to do.' The second count charged that he did have in his possession containers of moonshine whiskey to which excise stamps were not affixed. He plead guilty to both counts. As to the second count he was sentenced to pay costs or serve three months in the county jail. As to the first count sentence was suspended 'from day to day and term to term during good behavior and he is to report to Mr. H. C. Mitchell on the first of each month.'
In February 1947 capias was issued and placed in the hands of Constable R. E Davis, who arrested appellant, brought him before the court for a hearing to determine whether or not he had violated his conditional sentence. Immediately after his arrest, five officers of the Beverage Department who had accompanied Davis to appellant's place, entered and ransacked his home without a search warrant. They found a moonshine still, two barrels of mash and other equipment for making moonshine liquor in the kitchen.
At the hearing shortly after his arrest, appellant contended that the record of his conviction showed (1) no offense against the laws of the State, and (2) that the evidence secured at the search of his home was inadmissible and moved to suppress it. The court overruled the first contention but made no immediate ruling on the motion to suppress the evidence obtained at the search. At a subsequent prosecution for having possession of the still and other equipment, appellant was discharged because the search was illegally made and the evidence procured thereby inadmissible. At the conclusion of the hearing appellant was sentenced to serve six months at hard labor in the county jail for selling moonshine liquor without a license. His suspended sentence was accordingly revoked. This appeal is from that judgment.
It is first contended that the latter judgment should be reversed because appellant was convicted for selling moonshine liquor without a license, when no such license could be procured under the law. There is no merit to this contention. Section 562.05, Florida Statutes 1941, F.S.A., among other things, provides that no beverage containing more than one per cent of alcohol by weight shall be sold within the State without a license. The prosecution was brought under this act, the appellant plead guilty to the charge with knowledge of the result, and we think it fully covered the charge in count one which he admitted.
The second question challenges the validity of the evidence secured at the search of appellant's home, whether or not it should have been considered in voiding appellant's suspended sentence, and whether or not the court should have been influenced by it in sentencing him to six months at hard labor in the county jail.
The major concern of the court at the hearing was whether or not appellant had been on good behavior during his suspended sentence. The liberty he was enjoying was by judicial grace, he had already plead guilty to the offense of selling moonshine liquor. The hearing is in no sense a retrial of the main offense. Having plead guilty to that, he is now subject to be sentenced as he might have been at the time the suspended sentence was promulgated if he has not observed its conditions. The hearing was to determine this and no more.
Such hearings are informal and do not take the course of a regular trial, neither does the evidence have the same objective as that taken at a regular trial. Its purpose is to satisfy the conscience of the court as to whether the conditions of the suspended sentence have been violated. A secondary purpose is to give the person accused of violating the susponded sentence a chance to explain away the accusation against him, but even this does not contemplate a strict or formal trial. Burns v. United States, 287 U.S. 216, 53 S.C.t. 154, 77 L.Ed. 266; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Fleenor v. Hammond et al., 6 Cir., 116 F.2d 982, 132 A.L.R. 1241.
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