House v. State

• Citation: 172 So. 734,127 Fla. 145
• Court: Florida Supreme Court
• Decision Date: 17 February 1937
• Parties: HOUSE v. STATE.

172 So. 734

127 Fla. 145

HOUSE v. STATE.

Florida Supreme Court, Division B.

February 17, 1937

Error to Criminal Court of Record, Hillsborough County; Raleigh W Petteway, Judge.

Albert R. House pleaded guilty to a felony, and the first judgment and sentence having been set aside on habeas corpus, a new judgment and sentence was rendered, and defendant brings error.

Affirmed.

COUNSEL E. L. Bryan, of Tampa, for plaintiff in error.

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

OPINION

WHITFIELD Presiding Justice.

On a writ of habeas corpus issued in 1935 by this court, the petitioner was remanded for a proper judgment of conviction and sentence to imprisonment. It was made to appear that upon an information charging a felony, and a plea of guilty, the trial court in 1925 rendered the following as a final judgment and sentence:

'It is the judgment of the court and the sentence of the law that you, Albert House, be taken by the sheriff or his lawful deputy to the State's Prison of the State of Florida, and be delivered to the principal keeper thereof, there to be confined in said State's Prison at hard labor for the period of,' etc.

There was no adjudication of the guilt of the defendant, which rendered the judgment and sentence incomplete. See Mathis v. State, 67 Fla. 277, 64 So. 944; Chapman v Parrish, 114 Fla. 612, 154 So. 334. Several other like sentences were similarly imposed in cases charging the defendant with felonies, the sentences to be served consecutively and not concurrently. The defendant was committed to the state penitentiary under the above sentence. See State ex rel. House v. Mayo, 122 Fla. 23, 164 So. 673.

When the petitioner, Albert R. House, was taken before the trial court for a proper sentence under the remanding order of this court in the habeas corpus proceeding, counsel for Albert R House presented to the trial court a motion 'to discharge him from custody,' a motion in arrest of judgment, and a motion 'to allow him to withdraw the plea of guilty at this time and enter a plea of not guilty,' the last motion being upon grounds stating the plea of guilty was offered by defendant without advice of counsel and without knowledge of its consequences. The court overruled each motion. testimony was taken under the last motion before it was overruled.

When the defendant was taken before the court for a proper judgment and sentence, the trial court rendered the following judgment February 22, 1936:

'Now on this day came in person the defendant Albert House, and being asked by the court whether he had anything to say whey the sentence of the law should not now be pronounced upon him, says nothing,

'It is, therefore, the judgment, order, and sentence of the court, that you Albert House, for the crime of which you have been and stand convicted, be imprisoned in the State Penitentiary of the State of Florida at hard labor for a period of ten (10) years, sentence to gegin at the expiration of sentence No. 259.'

A writ of error was taken by the defendant House to the above judgment and sentence of the trial court. Writs of error were likewise taken to other similar judgments and sentences against the defendant.

The final order in the habeas corpus proceeding in this court remanding the petitioner Albert House 'to be taken before the Criminal Court of Record for a proper sentence, if any should be imposed,' gave to the judge of the criminal court of record an opportunity to render a proper judgment and sentence upon the plea of guilty entered where the period of the sentence originally imposed had not been served. Even if the plea of guilty was rendered under circumstances making the judgment on the plea illegal, the remedy would be by writ of error coram nobis. Nickels v. State, 86 Fla. 208 98 So. 497, 502, 99 So. 121. The motions to discharge and for arrest of judgment were not admissible, the authority of the trial court being merely to render proper judgment and sentence. The habeas corpus proceedings attacked only the legality of the imprisonment under the incomplete judgment and sentence originally rendered by the trial court. The jurisdiction to render a complete judgment and sentence in the cause continued until the function was performed; and the usual general order entered by the trial court continuing to the successing term all...