Jerry v. State, 5422
| Decision Date | 07 May 1965 |
| Docket Number | No. 5422,5422 |
| Citation | 174 So.2d 772 |
| Parties | Charlie Will JERRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Pyle, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
This is an appeal by the defendant Charlie Will Jerry from an order denying relief without hearing under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
The defendant pleaded guilty on two charges of breaking and entering with intent to commit a felony in the Circuit Court of Pinellas County. He was sentenced on August 17, 1961 to serve terms of six months to five years on each charge, to run concurrently. The defendant was paroled, and was again convicted in Pinellas County of breaking and entering and sentenced on August 1, 1963 to serve two terms of six months to five years, also to run concurrently. He is now serving the sentence on the judgments of August 1, 1963, and will begin to serve the sentence for the terms imposed on August 17, 1961 when his present sentences terminate.
The trial court denied relief on authority of numerous cases decided by this court, including White v. State, Fla.App.1964, 165 So.2d 799. This court, in following said cases, per curiam affirmed the trial court by opinion filed on March 12, 1965. The defendant, in proper person, filed motion for rehearing on April 8, 1965, which must be stricken as not having been timely filed under Florida Appellate Rule 3.14, 31 F.S.A. The mandate of affirmance was entered on April 2, 1965.
On March 31, 1965 this court in the case of Jones v. State, Fla.App.1965, 174 So.2d 452, receded from its holding in White v. State, supra, and cases holding similarly for the reason that a person who is serving one sentence and is now moving to vacate a sentence which commences in the future is actually in custody under both sentences in contemplation of Criminal Procedure Rule No. 1.
In order to conform the rulings of the court in this case to the recent decision in Jones v. State, supra, it is necessary that the mandate be recalled and set aside; a rehearing be granted by this court, sua sponte, and its per curiam affirmance recalled; the record reviewed and such opinion rendered as may be proper under the circumstances.
The mandate of this court during the term in which entered may be vacated, corrected and changed. Trustees of...
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Maffea v. Moe, 85-2451
...in the appellate rule, were stricken as untimely; yet the appellate court sua sponte reconsidered its decision. E.g., Jerry v. State, 174 So.2d 772 (Fla. 2d DCA 1965). This suggests the time limit, stated in the rule, for moving for rehearing, is not jurisdictional. The indication in the ru......
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Simpson v. State, BJ-453
...of Appeal, 405 So.2d 980 (Fla.1981); United Faculty of Florida v. Board of Regents, 423 So.2d 429 (Fla. 1st DCA 1982); Jerry v. State, 174 So.2d 772 (Fla. 2d DCA 1965). The court is now in the same term which commenced on the second Tuesday in January 1987, and that term does not expire unt......
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Westberry v. Copeland Sausage Co.
...reconsidered the Barth case based on the law announced in City of Tampa v. Easton. A similar situation occurred in Jerry v. State, 174 So.2d 772 (Fla. 2nd DCA 1965). In that case also the court recalled its mandate in order to conform the ruling in Jerry to a recent decision of the court in......
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Kinard v. State, 95-2550
...659 So.2d 435 (Fla. 4th DCA 1995); United Faculty of Fla. v. Board of Regents, 423 So.2d 429 (Fla. 1st DCA 1982); Jerry v. State, 174 So.2d 772 (Fla. 2d DCA 1965). We affirm the judgment and sentence imposed upon the MANDATE RECALLED AND VACATED; JUDGMENT AND SENTENCE AFFIRMED. PETERSON, C.......