Futch v. Johnson

• Decision Date: 28 April 1931
• Citation: 101 Fla. 328,134 So. 791
• Parties: FUTCH v. JOHNSON, Sheriff.
• Court: Florida Supreme Court

134 So. 791

101 Fla. 328

FUTCH v. JOHNSON, Sheriff.

Florida Supreme Court

April 28, 1931

In Banc.

Error to Circuit Court, Polk County; Harry G. Taylor, Judge.

Habeas corpus proceeding by I. M. Futch, Jr., against J. A. Johnson as Sheriff of Polk County. To review a judgment remanding the petition to the custody of the sheriff, the petitioner brings error.

Judgment affirmed.

COUNSEL Rogers & Rogers, of Lakeland, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty., Gen., for the State.

OPINION

ADAMS Circuit Judge.

Upon a charge of unlawfully withholding support from his minor children, Vivian and Carolyn Futch, based upon provisions of section 7654, Comp. Gen. Laws 1927, the appellant, L. M Futch, Jr., was informed against in the criminal court of Polk county. On April 3, 1930, after trial, he was found guilty. On April 4, 1930, he was sentenced to pay a fine of $500, and costs, or be imprisoned in the county jail for six months. The judgment further provided that the sentence be suspended 'upon the giving by defendant of a bond in the sum of $500.00, payable to the Governor of the State of Florida, conditioned that the said defendant pay to Mrs. Millard Futch, for the benefit of the two minor children of said defendant, the sum of $40.00 per month payable on the 15th of each and every month, said payment to begin on the 15th day of April, 1930.'

The record here does not disclose that any motion for a new trial was made, or any other proceeding had seeking to set aside the verdict. No question is raised here as to the legality of the charge, the sufficiency of the evidence to support it, the correctness of the verdict, or the justice of the judgment rendered thereon. No writ of error was sought to have the validity of the proceedings adjudicated by the appellate court. The only question presented here for decision is whether or not the judge of the criminal court had the authority, under the statute, to fix the amount and conditions of the bond, by the giving, acceptance, and approval of which, as provided by law, the defendant could escape the imposition of sentence, or whether the judge could only impose a sentence, and them leave it to the defendant to construe the statute, and give such bond as he thought proper under its provisions.

A few days after his conviction, Mr. Futch, accompanied by his attorney, Mr. Rogers, and two physicians, appeared before the court, presumably to make some representations regarding the health of Mr. Futch. Nothing came of this except a letter written by the judge to Mr. Peterson, criminal court solicitor, and copy thereof sent to Mr. Rogers. The letter is as follows:

'April 11th, 1930.

'Hon. J. H. Peterson, County Solicitor, Lakeland, Florida.

'Re: State vs. Futch.

'Dear Sir: As I understand, the defendant is in a serious physical condition and will have to be sent immediately to some sanitarium, in fact it seems he is verging on insanity. Mr. D. O. Rogers, his attorney, made application this morning, having Dr. Freeman of Lakeland present who made a statement, to have the sentence against defendant suspended. I desire to be very cautious with reference to suspending a sentence, and would be pleased to have you look into the matter further, and also probably confer with Mr. D. O. Rogers, defendant's attorney.

'It would probably be a better course legally for Mr. Rogers to make application to have the sentence which I have just passed in the case, set aside and to withhold the sentence until next term or some subsequent term until Mr. Futch's condition is better. There should be a formal application for this purpose with affidavit or affidavits showing Mr. Futch's condition. I shall be pleased to have you consider this matter from a legal standpoint, and also have Mr. Rogers to do likewise. I am sending Mr. D. O. Rogers a copy of this letter.

_________________________________ 'Yours very truly,

_________________________________ Judge.'

A day or so after this letter was written, Mr. Futch left for Atlanta to enter Brawner's Sanitarium, a well-known institution throughout the South. Apparently no attention was paid to Judge Olliphant's suggestions as to the proper course to pursue to secure suspension of sentence. Mr. Rogers in his testimony (R. P. 42) says, 'I gave it no further consideration,'...