D'alessandro v. Tippins

• Decision Date: 05 November 1929
• Citation: 124 So. 455,98 Fla. 853
• Court: Florida Supreme Court
• Parties: D'ALESSANDRO v. TIPPINS, Sheriff.

124 So. 455

98 Fla. 853

D'ALESSANDRO v. TIPPINS, Sheriff.

Florida Supreme Court

November 5, 1929

En Banc.

Error to Circuit Court, Lee County; George W. Whitehurst, Judge.

Habeas corpus by Angelo D'Alessandro against Frank B. Tippins Sheriff. To review a judgment remanding petitioner to custody of the sheriff, petitioner brings error.

Affirmed.

Brown J., dissenting.

Judgment in criminal case may be corrected at any time to speak truth though defendant has begun serving sentence.

Time served under original judgment and sentence is part of sentence imposed under amended judgment corrected to speak truth of what was actually done.

Syllabus by the Court

SYLLABUS

Judgment in criminal case may be corrected at any time to speak truth though defendant has begun serving sentence. The judgment of a court of competent jurisdiction in a criminal case may be corrected at any time so as to speak the truth of what was in fact done by the court in which the judgment was entered, although the convicted person may have begun serving the sentence imposed.

Time served under original judgment and sentence is part of sentence imposed under amended judgment corrected to speak truth of what was actually done. Where a person accused of crime is duly convicted of the offense charged, and enters upon the service of the sentence of imprisonment imposed, and afterward the judgment and sentence is amended to speak the truth of what was actually done by the court, the time served under the first judgment and sentence is part of the sentence of imprisonment imposed under the amended judgment.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

Fred H. Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for defendant in error.

OPINION

ELLIS, J.

Angelo D'Alessandro on the 15th day of February, A. D. 1929 claiming to be unlawfully deprived of his liberty by the sheriff of Lee County, obtained a writ of habeas corpus from the circuit court of that county. On that date the sheriff produced the body of D'Alessandro, and made return to the writ that he held him in his custody by virtue of a commitment issued by the clerk of the county court upon a judgment and sentence entered and imposed by the county judge. The return recited that a copy of the judgment was attached to the petition for the writ, and was entered by virtue of an order signed by the judge of the Nineteenth circuit for De Soto county on January 19, 1927, and that a copy of such order was attached as Exhibit B to the return.

There is no such exhibit to the return, but the circuit court heard the cause upon the petition and return, and remanded the petitioner to the custody of the sheriff. A writ of error being granted, the cause is here.

The petition alleges that the petitioner was held under an 'illegal commitment issued upon a void judgment in the County Court of Lee County.' The petition recites that a copy of the judgment is attached and marked Exhibit A and made a part of the petition. There is an uncertified copy of a judgment attached to the petition, but it is not identified by any mark as the one referred to in the petition. There is a stipulation between the attorneys waiving 'objection to the absence of certificate to the copies of judgments and to the commitment attached to the petition,' and as to some other matters, but the stipulation does not cover the point that the uncertified copy of the judgment attached is the one referred to in the petition as a 'void judgment in the county court for Lee County.' Nor is there any way for determining that the judge of the circuit court had the judgment before him of which the document appearing in the record purports to be a copy when he entered the order remanding the petitioner to the custody of the sheriff.

Whether the presumption of correctness which exists in favor of the judgment may be overcome by the unsatisfactory condition of the record presented here is doubtful, even in view of the clerk's certificate to the record, which recites that the pages embracing the document contain a 'correct transcript of the record of the judgment' in the habeas corpus case.

Now the judgment, which is referred to as a void judgment, is as follows:

"A jury having found you guilty, the Court adjudged you to be guilty and it is the sentence of the law and the judgment of this Court that you, Angelo D'Allessandro, for your said offense be imprisoned for a period of five months in the County Jail at hard labor, and in addition thereto that you do pay a fine of Five Hundred ($500.00) Dollars, and the costs of the Court, and in default of the payment of said fine and costs, that you do be imprisoned an additional six months in the County Jail at hard labor.'

'Done and ordered in open Court on this the 25th of January A. D. 1927.

'N. G. Stout, Judge.'

There are certain recitations contained in the document to the effect that D'Alessandro was arraigned and entered a plea of not guilty on the charge of unlawful possession of intoxicating liquors; that he was tried by a jury, found guilty, and sentenced on the 24th day of May, 1926, by the 'Judge of said court and a judgment therein rendered'; that on the 16th day of June, 1926, D'Alessandro appealed said cause to the circuit court for Lee county, and the judgment was affirmed, and, pursuant to the mandate of the circuit court, a commitment was issued, and petitioner began serving the sentence on December 10, 1926, and continued serving until January 8, 1927, on which date he obtained a writ of habeas corpus from the judge of the Nineteenth judicial circuit, and, upon the hearing on January 19, 1927, the judge 'did remand back to this court the said matter on account of certain errors in the judgment and sentence in order that the said defendant be resentenced on the verdict according to law.'

Then follows the judgment, referred to above, which was attached...