Brooke v. State
| Decision Date | 06 June 1930 |
| Citation | 128 So. 814,99 Fla. 1275 |
| Parties | BROOKE v. STATE. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Error to Circuit Court, Volusia County; M. G. Rowe, Judge.
Horace Brooke was convicted of deserting his wife and withholding from her means of support, and he brings error.
Reversed.
Phillip E. Buck, of De Land, for plaintiff in error.
Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter referred to as the defendant was indicted in the circuit court of Volusia county for a violation of section 7654, Compiled General Laws of Florida 1927, in that he deserted his wife and withheld from her means of support. A verdict of guilty as charged was returned, and upon a motion for a new trial being denied, judgment and sentence was passed and entered against him, and the case is here for review upon writ of error.
Defendant contends that the indictment charges two distinct offenses: (1) Desertion of his wife, and (2) withholding from her means of support. There was no motion to quash the indictment nor in arrest of judgment, but it is contended that the point is legally raised by the motion of defendant at the beginning of the trial to require the state to elect, as between two offenses charged in the single count of the indictment, upon which it would stand.
In the case of Stedman v. State, 80 Fla. 547, 86 So. 428, 430, where the charge was for desertion of the wife in one count and a withholding of means of support from the wife and child in another count, it was held that while either the unlawful desertion, or the unlawful withholding of the means of support by a husband from his wife, may be a distinct act and charged separately, yet where both are done by the same person at the same time and involve both the wife and a child, such conduct under the statute may be regarded as constituting one offense and charged in one count; the only difference being that as to the wife, his liability under the statute is contingent upon the nonexistence of such cause or causes for his acts as may be recognized as a ground for divorce. See also Bradley v. State, 20 Fla. 728; Irvin v. State 52 Fla. 51, 41 So. 785, 10 Ann. Cas. 1003; also 14 R. C. L. 194, § 40.
In the case of Whitton v. State, 93 Fla. 97, 111 So. 514, wherein the desertion and the withholding of means of support were charged in separate counts, a general verdict of guilty of both was held valid.
No error was committed by the trial court in denying the motion.
We find it is necessary under the law heretofore announced by this court to reverse this cause by reason of a total lack of evidence to support the verdict as to one of the issues of the case, to be noted later. We deem it necessary at this time to dispose of the point raised by brief of Attorney General wherein it is suggested that that portion of the judgment and sentence providing that the defendant pay a fine of $500 and costs, and that in default thereof he be 'confined at hard labor in the State Prison of the State of Florida, for and during a period of one year, sentence to begin from this date' (December 20, 1929), is void as to the alternative penalty of confinement in the state prison. It is also suggested that as the sentence was to 'begin from this date,' by the time the case is remanded for proper judgment and another writ of error perfected and finally decided, 'the term of the sentence will have expired.' The reply brief of defendant apparently assumes that error has been confessed and expresses 'a renewed faith in the administration of justice.'
While the trial court, in providing that the defendant should 'serve a year in the State prison' in default of the payment of the primary penalty of $500, committed error, it was only such error as would require a reversal as to that defect for the purpose of allowing the trial court to correct the judgment to comply with section 8419, Compiled General Laws of Florida, 1927, which has been the law since the enactment of chapter 4026, Laws of 1891, providing as follows:
'Whenever any court or judge shall, under the criminal laws of this State, sentence and adjudge a person to pay a fine, or a fine and costs of prosecution, such court or judge shall also provide in such a sentence a period of time for which such person shall be imprisoned in the county jail in default of payment of the same.'
In other words, where the primary penalty imposed for a crime in this state is a fine, or a fine and cost of prosecution, the imprisonment for nonpayment of such fine, or fine and costs, must be in the county jail and not in the state prison. Roberts v. State, 30 Fla. 82, 11 So. 536, (decided in 1892); Eggart v. State, 40 Fla. 527, 25 So. 144; Dean v. State, 41 Fla. 291, 26 So. 638, 79 Am. St. Rep. 186; Clifton v. State, 76 Fla. 244, 79 So. 707; Sykes v. State, 78 Fla. 167, 82 So. 778. When a sentence is not in compliance with the above long-established law, the judgment may be ceversed and the cause remanded for a proper sentence. Smith v. State, 71 Fla. 639, 71 So. 915.
However, the provision in the judgment for the 'sentence to begin from this date' not being in compliance with the law of this state can be treated as surplusage and as having no effect upon the valid portion, and therefore could not have the effect of causing the term of the sentence to expire before the case could be remanded and another appeal disposed of--assuming that the case is not reversible for another reason. The court fixes the penalty and the law fixes the beginning and expiration, unless more than one imprisonment sentence is passed upon the same defendant, in which case the trial court may provide that the period of imprisonment may run concurrently or consecutively. Wallace v. State, 41 Fla. 547, 26 So. 713. In the case of State v. Horne, 52 Fla. 125, 135 text, 42 So. 388, 389, 7 L. R. A. (N.S.) 719, this court held:
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State v. Erpelding
...at 16.11 23 Am.Jur.2d Desertion and Nonsupport § 42 (2013) (citing Streater v. Cox, 336 Fed.Appx. 470 (6th Cir.2009) ; Brooke v. State, 99 Fla. 1275, 128 So. 814 (1930) ).12 See, Ind. Code Ann. § 35–46–1–5 (LexisNexis 2009) ; Tex. Penal Code Ann. § 25.05 (West 2011).13 State v. Bright, 238 ......
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