Ex Parte Pells

• Decision Date: 04 August 1891
• Parties: Ex parte PELLS.
• Court: Florida Supreme Court

9 So. 833

28 Fla. 67

Ex parte PELLS.

Florida Supreme Court

August 4, 1891

Application by William Pells for writ of habeas corpus. Writ granted, and petitioner discharged.

Syllabus by the Court

SYLLABUS

1. The relief which the act entitled 'An act for the relief of persons imprisoned for the non-payment of fine and costs imposed by sentence of any of the courts of this state,' approved May 25, 1891, (St. c. 4075,) provides shall be had on written application by the convict to the judge of any circuit court or criminal court of record, may be administered by the supreme court on writ of habeas corpus when there is no criminal court of record in the county where such convict is confined, and the office of judge of the circuit is vacant.

2. The purpose of the act of May 25, 1891, (St. c. 4075,) is that no person sentenced to pay a fine not exceeding $300, or such fine and costs, whether with or without imprisonment, shall be confined longer than 60 days for the non-payment of the fine or fine and costs, where he is unable to pay, and that any such person shall be discharged, after the expiration of 60 days, upon an examination, resulting as contemplated by the act, being made.

3. The act of May 25, 1891, (St. c. 4075,) is not in conflict with section 32 of article 3 of the constitution, ordaining that 'the repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment.'

4. The act of May 25, 1891, (St. c. 4075,) does not repeal the act of March 7, 1877, (sections 1, 2, p. 320, McClel. Dig.,) authorizing the county commissioners to employ persons imprisoned in jail at labor, and allow them credit on fine and costs as therein provided. The act of 1877 is in force to be administered in cases falling within the act of 1891 until at least the end of the 60 days.

COUNSEL

R. W. Williams, for petitioner.

Geo. W. Walker, for the State.

OPINION

RANEY C.J.

Pells was convicted on the 27th day of April of the present year in the circuit court of Leon county, of an aggravated assault, and sentenced to apy a fine of $250, and costs, and has been held by the sheriff in the county jail since that time in default of payment of such fine and costs. On the 29th day of July he presented a petition to the justice writing this opinion, praying, in effect, to be discharged under the provisions of 'An act for the relief of persons imprisoned for the non-payment of fines and costs of courts imposed by sentence of any of the courts of this state.' Chapter 4075, approved May 25, 1891. This statute provides by its first section that, from and after its passage, no person shall be held in confinement a longer period than 60 days for the non-payment of a fine, or fine and costs, imposed by sentence of the courts of this state. Its second section enacts that when any person sentenced by any such court to pay a fine, or fine and costs, whether with or without imprisonment, has been confined in prison solely for the non-payment of such fine and costs, he may make application in writing to the judge of any circuit court or criminal court of record in the county where he is confined, setting forth his inability to pay such fine, or fine and costs, and the judge of such court shall proceed to hear and determine the matter; and if, upon examination, it shall appear to him that such person is totally unable to pay such fine, or fine and costs, and that he has not any property exceeding $20 in value, the judge of such court shall administer to him the following oath: 'I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, and that I have no property in any way conveyed, or concealed, or in any way disposed of, for my future use or benefit, so help me God.' That thereupon such person shall be discharged from further custody, the judge giving to the jailer or keeper of the jail a certificate setting forth the facts. There is a proviso that the amount of the fine for which such person shall have been imprisoned shall not exceed $300. The statute, by virtue of a special provision therein, took effect upon its approval.

There has never been any criminal court of record in Leon county, and there was at the time the petition mentioned above was presented, and is now, a vacancy in the office of circuit judge of the second judicial circuit, which circuit includes Leon county. Under these judicial conditions, if the circumstances contemplated by the above act exist, we think the prisoner should be discharged upon habeas corpus, and we do not doubt out jurisdiction to administer the relief through this writ. The inquiry into his financial condition can be made through the powers of the court ordinarily invoked inhabeas corpus proceedings, and the same pains and penalties will result to the petitioner from any false-swearing that would result in any case of false-swearing on a hearing under such writ.

If is urged on behalf of the state that this statute cannot in view of section 32 of article 3 of the constitution, be invoked in favor of Pells, whose case, as the dates given above indicate, is antecedent to the statute. This section of the constitution is: 'The repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment.' Pells was convicted under the second section of the act of February 11, 1881, (section 2, p. 387, McClel. Dig.,) which provides that whoever assaults another with a deadly weapon, not having a premeditated design to effect the death of the person assaulted, shall be deemed guilty of an aggravated assault, and upon conviction shall be punished...