Ellis v. State

• Citation: 129 So. 106,100 Fla. 27
• Parties: ELLIS v. STATE.
• Decision Date: 17 June 1930
• Court: Florida Supreme Court

129 So. 106

100 Fla. 27

ELLIS v. STATE.

Florida Supreme Court

June 17, 1930

En Banc.

Certiorari to Circuit Court, Hillsborough County; L. L. Parks, Judge.

J. H Ellis brings certiorari.

Judgment quashed, and cause remanded.

TERRELL C.J., and WHITFIELD, J., dissenting.

COUNSEL

Zewadski & Pierce, of Tampa, for petitioner.

Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BROWN J.

This case is before us upon writ of certiorari to the circuit court for Hillsborough county to review the judgment of that court affirming an alleged judgment of the court of crimes of that county. The alleged judgment of the court of crimes was as follows:

'It is the judgment of the court and the sentence of the law, that you J. H. Ellis, pay a fine of $300, and in default of payment of said fine you will be confined in the County jail for a period of (3) months.'

Under the prior decisions of this court, the so-called judgment of the court of crimes was defective, in that it contained no adjudication by the court of the guilt of the defendant. It neither formally adjudged him to be guilty, nor recited his conviction by the jury, using such language as indicated the confirmation of adoption or approval of such verdict by the court. See Timmons v. State, 97 Fla. 23, 119 So. 393, and cases therein cited; also State v. Blitch, 97 Fla. 260, 120 So. 355; Cauhn v. State (Fla.) 122 So. 565; Brown v. State (Fla.) 123 So. 736. It is true, the record of the proceedings in the court of crimes showed that, although not mentioned in the judgment entry, a verdict had been rendered finding the defendant guilty 'as charged in the second count of the information;' but, whatever may be the holding in some jurisdictions, this court is firmly committed to the doctrine that a legal conviction of crime includes a judgment of the court as well as a plea or verdict of guilty. Smith v. State, 75 Fla. 468, 78 So. 530; Johnson v. State, 81 Fla. 783, 89 So. 114; Harris v. State, 75 Fla. 527, 78 So. 526, 527; Pensacola Lodge, etc., v. State, 74 Fla. 498, 77 So. 613, 86 So. 506; Gordon v. State, 86 Fla. 255, 97 So. 428, 429; Kauz v. State (Fla.) 124 So. 177. See, also, State v. Barnes, 24 Fla. 153, 4 So. 560; Demens v. Poyntz, 25 Fla. 654, 6 So. 261. While there might be some ground for relaxing this rule somewhat as to the record evidence of judgments of courts that are not courts of record, such as justice and municipal courts, and in which the entries are usually very meager and informal (Freeman on Judgments [5th Ed.] § 118), we see no reason for changing the rule as to judgments in courts of record, merely because the crime of which the defendant was found guilty happens, as in this case, to be a misdemeanor. In fact, we have several times held, as borne out by some of the decisions above cited, that in cases where a former conviction of a misdemeanor is charged, in order to make the second charge for the same offense amount, under the statute, to a charge of felony, the evidence to sustain the allegation of the former conviction of misdemeanor must show, in addition to the plea of guilty, or the verdict of guilty, and the imposition of punishment, an adjudication by the court of the defendant's guilt; thus, in principle, extending the rule to misdemeanor cases.

It is contended that the court's adjudication of the guilt of the defendant should be implied from the imposition of sentence; that certainly the court would not have sentenced the defendant unless he had reached the conclusion that he was guilty, as found by the jury.

But, aside from what might be implied on collateral attack, which we are not here considering, can this important element be implied, on appeal? It must of course be admitted that, in the abstract at least, the rendition of a judgment is a judicial act, while its entry upon the record is merely ministerial, and that a judgment may, in whole or in part, be pronounced or rendered, though not actually recorded. Black on Judgments (2d Ed.) § 106; Freeman, Judgments (5th Ed.) § 46. See, also, section 4496, Comp. Gen. Laws 1927. This doctrine is the foundation for subsequent entries nunc pro tunc of judgments which were previously announced and rendered, but not entered on the record. Judge Freeman says: 'Generally, however, the judicial act precedes the ministerial one, and it becomes necessary to determine what amounts to a rendition of judgment thought it may never have been entered. In theory, there is a clear distinction between the fact and the evidence of the fact, but practically it is often difficult or impossible to distinguish between them. So though it may be recognized that the act of the court is different from the evidence of it, many courts find it hard to distinguish them, and while not insisting on a formal entry, require record evidence to establish the existence or substance of the judgment. * * * Bearing in mind these possible qualifications and limitations, it is doubtless true that the rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication. Any statutory provision on the matter is of course controlling, as where it is required that a written decision be filed. * * * Generally, however, the court's pronouncement may be oral as well as written, as when it is announced from the bench. * * * The failure of the clerk to enter a minute of the judgment so pronounced does not affect the judgment, since the entry is only evidence.' Freeman on Judgments, § 48. To like effect is section 106 of Black on Judgments, but the author adds: 'There are certain purposes, however, for which a judgment is required to be duly entered before it can become available or be attended by its usual incidents. Thus, * * * this is a prerequisite to the right to appeal. And so a judgment must commonly be docketed before it can create a lien upon land. * * * And again, the record entry of a judgment is indispensable to furnish evidence of it, when it is made the basis of a claim or defense in another court.' And further on, in § 115, the same author says that 'a much less degree of technicality and formality is required in judgments of justices of the peace and other inferior courts than is exacted in respect to the judgments of courts of record.'

Continuing his discussion of the subject, Judge Freeman, in § 49 of his work, says: 'But while the entry is not the judgment, its absence tends strongly to indicate that no judgment exists, and in doubtful cases may be sufficient to sustain the issue that whatever has been done has been but preliminary to judgment.' And again: 'While in one sence a judgment is 'rendered' when it is announced by a judge, yet until that judgment is entered of record there is no competent evidence of such rendition. * * * The Court speaks through its journal and a judgment is not rendered until it is reduced to a journal entry. Slight reflection will show the necessity of this rule. Otherwise doubt and controversy would constantly arise as to what the judgment or order of the court and its date were. But even where such a rule prevails, if the court has previously announced or rendered its decision, the entry may be made nunc pro tunc.' This rule was followed in Pittsburg Steel Co. v. Streety, 60 Fla. 183, 53 So. 505, wherein this court said: 'A judgment in an action at law is rendered when it is entered or recorded in the minutes of the court during term time, or when in vacation it is put in form for such entry or record and is signed by the judge.' This case also recognizes the power of the court in proper cases to have judgments entered nunc pro tunc, but holds that an appeal from an unentered judgment taken prior to such nunc pro tunc entry is ineffectual. Of course, where no judgment is in fact pronounced or rendered, at the close of a hearing or trial, the case remains unfinished on the docket until the judgment is later rendered and entered, unless the court has lost jurisdiction of the case. Such a judgment, when entered, is not the entry nunc pro tunc of a judgment previously rendered, but not entered of record; it is the entry of a judgment that had not theretofore been rendered--a new and original judgment.

Section 4390, Comp. Gen. Laws 1927, provides that 'All final judgments and decrees, heretofore or hereafter rendered and entered in the circuit courts of this State, and certified copies thereof shall be admissible as prima facie evidence in the several courts of this State of the entry and validity of such judgments and decrees.' This statute may have been qualified to some extent by section 4496, Comp. Gen. Laws 1927, but only in certain respects not here important.

We conclude, therefore, that on appeal from a court of record the appellate court would not be authorized to imply that an adjudication of the defendant's guilt, or a judgment of conviction, had been rendered by the court, when the record merely shows that the judgment entry only imposes punishment or pronounces sentence.

It must be admitted that many courts have held to the contrary. Thus, in 16 C.J., page 1302, it is said:

'While it is necessary that the record show that there was a sentence upon the verdict, in the absence of a statutory requirement it is not necessary that the court should, before sentence, find as its independent judgment upon the facts, as a condition of its power to sentence, that accused is guilty. If the court states the finding of the jury and pronounces sentence thereon, this is a judicial determination of the fact of defendant's conviction and is all that is required.'

It will be noted that even this statement of the rule contemplates that the judgment entry should 'state the...