Joyner v. State
| Decision Date | 29 April 1947 |
| Citation | 158 Fla. 806,30 So.2d 304 |
| Court | Florida Supreme Court |
| Parties | JOYNER v. STATE. |
Rehearing Denied May 29, 1947.
Appeal from Criminal Court, Duval County; Bryan Simpson judge.
Lloyd Bass, of Jacksonville, for appellant.
J. Tom Watson, Atty. Gen., and Jesse Warren, Sp. Asst. Atty. Gen for appellee.
The appeal brings for review a judgment of conviction under an information presented under the provisions of Section 775.11, Fla.Statutes 1941, F.S.A., alleging that: 'Jesse Joyner Jr., alias Jesse Joiner, Jr., of the County of Duval and State of Florida, on the twenty-second day of January in the year of our Lord, one thousand nine hundred and forty-six in the County and State aforesaid, having heretofore been, on the fifteenth day of March in the year of Our Lord, one thousand nine hundred and thirty-three, convicted of the crime of robbery, a felony under the laws of the State of Florida, in the Criminal Court of Record of Duval County, Florida, and was by said Court sentenced to serve a term of four (4) years in the State Prison, which said judgment was not reversed and he, the said Jesse Joyner Jr., alias Jesse Joiner, Jr., having been on the fifteenth day of March, in the year of Our Lord, one thousand nine hundred and thirty-three, convicted of the crime of robbery, a felony under the laws of the State of Florida, in the Criminal Court of Record of Duval County, Florida, and was by said court sentenced to serve a term of four (4) years in the State Prison, which said judgment was not reversed and he, the said Jesse Joyner, Jr., alias Jesse Joiner, Jr., having been on the fifteenth day of March in the year of Our Lord one thousand nine hundred and thirty-three, convicted of the crime of assault with intent to commit murder, a felony under the laws of the State of Florida, in the Criminal Court of Record of Duval County, Florida, and was by said court sentenced to serve a term of two (2) years in the State Prison, which said judgment was not reversed, he, the said Jesse Joyner, Jr., alias Jesse Joiner, Jr., was then and there convicted of the crime of breaking and entering with intent to commit grand larceny, a felony under the laws of the State of Florida, in the Criminal Court of Record of Duval County, Florida, and was by said Court sentenced to serve a term of fifteen (15) years in the State Prison, which said judgment has not been reversed and still remains in full force and effect, therefore, the said Jesse Joyner, Jr., alias Jesse Joiner, Jr., has been convicted of four felonies under the laws of the State of Florida, contrary to Section 775.10 Florida Statutes 1941, and against the peace and dignity of the State of Florida.'
The information was attacked by motion to quash, which motion was denied.
On the trial it was shown that the defendant had been three times convicted on the 15th day of March, 1933, as alleged in the information, and that on the 22d day of January, 1946, a judgment of conviction had been entered against the defendant for the crime of breaking and entering with intent to commit grand larceny; but, it was also shown that appeal and supersedeas had been taken from that judgment and that the judgment of conviction was at the time of the filing of the information and at the time of the trial on appeal before the Supreme Court of State of Florida.
As the close of the testimony defendant moved for a directed verdict. In this motion ithe sufficiency of the evidence to sustain a verdict was challenged upon the ground that the State's evidence showed that the alleged conviction of January 22, 1946, had been and was then superseded by the appeal to the Supreme Court and that no action had been taken by the Supreme Court to dispose of the case and that the evidence was insufficient to sustain a verdict.
The provisions of Section 775.11 only authorize the filing of an information as described therein in cases where there has been a previous conviction of the crime denounced by Section 775.09 or Section 775.10, Fla.Statutes 1941, F.S.A. This information attempted to charge that a conviction had been had of the defendant under the provisions of Section 775.10, supra.
It appears to be very well settled that before a prior conviction may be relied upon to enhance the punishment in a subsequent case such prior conviction must be final. If an appeal has been taken from a judgment of guilty in the trial court that conviction does not become final until the judgment of the lower court has been affirmed by the appellate court. See McAlester v. State, 16 Okl.Cr.R. 70, 180 P. 718; State v. Volmer, 6 Kan. 379; Commonwealth v. McDermott, 224 Pa. 363, 73 A. 427, 24 L.R.A.,N.S., 431; Long v. State, 17 Okl.Cr.R. 672, 192 P. 427; State v. Zounick, 133 Wash. 638, 234 P. 659; Neal v. Commonwealth, 221 Ky. 239, 298 S.W. 704; Arbuckle v. State, 132 Tex. Cr.R. 371, 105 S.W.2d 219; Newsom v. State, 136 Tex.Cr.R. 114, 123 S.W.2d 887; Donnell v. Board of Registration of Medicine, 128 Me. 523, 149 A. 153; Nelson v. State, 116 Neb. 219, 216 N.W. 556; Staniforth v. State, 24 Ohio App. 208, 156 N.E. 924; People ex rel. Bistany v. Brophy, 173 Misc. 572, 18 N.Y.S.2d 491.
The judgment of conviction referred to in the information as the fourth conviction of a felony was at the time of the filing of the information, and at the time of the trial, not final and effective and, therefore, such judgment could not at that time be relied upon as a basis for the information and proof thereof was not sufficient to support the conviction.
Aside from what has been hereinbefore said, we are impelled to hold that the information failed to charge the three former convictions alleged to have occurred on March 15, 1933, to have occurred in such manner as to constitute a basis for the allegation that the conviction alleged to have occurred on January 22, 1946, was a fourth conviction of a felony within the purview of Sec. 775.10, Fla.Statutes 1941, same F.S.A. To constitute a second or a fourth conviction within the purview of Sec. 775.09 or Sec. 775.10, supra, the information or indictment must allege and the evidence must show that the offense charged in each information subsequent to the first was committed and the conviction therefor was had after the date of the then last preceding conviction. In other words, the second conviction must be alleged and proved to have been for a crime committed after the first conviction. The third conviction must be alleged and proved to have been for a crime committed after both the first and second convictions, and the fourth conviction must be alleged and proved to have...
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