Noble v. State
| Decision Date | 20 October 1977 |
| Docket Number | No. 50634,50634 |
| Citation | 353 So.2d 819 |
| Parties | Dewayne F. NOBLE, III, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Michael M. Corin and Margaret Good, Asst. Public Defenders, Tallahassee, for petitioner.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for respondent.
Dewayne Frank Noble's petition for certiorari was granted by this Court and the writ was issued to review the decision in this cause by the District Court of Appeal, First District, reported at 338 So.2d 904. The writ was issued because the decision conflicts with State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967).
Noble was convicted in the Circuit Court, for Gilchrist County, of larceny of an automobile. In a consolidated order of judgment and sentence, dated May 10, 1976, the Circuit Court ordered a sentence of five years imprisonment at hard labor, the initial three to be served with no credit for "good time or gain time" and the following two to be stayed while Noble was to be on probation. Noble filed a Notice of Appeal in the First District Court for review of "(his) judgment and conviction . . . dated May 10, 1976." The Notice did not inform the parties and the courts that Noble sought review of the sentence, and indeed, the assignments of error specified "evidence insufficient to sustain conviction" as the only error in the proceedings below. Noble filed a request to supplement the assignments of error, however, to include the error of imposing a split sentence disallowing the usual credit. The request was granted on August 25, 1976.
In its decision the District Court declined to consider the sentencing error because the Notice of Appeal did not state that Noble intended to appeal his sentence. In State ex rel. Poe v. Allen, supra, at 746, defective notice was found to be cured by the following factors: proper identification of the litigation in the Notice, clear intent to prosecute an effective appeal, specification of errors reviewable, presentation of a proper record and the absence of prejudice to the parties on the opposite side. Each of these factors is present in this case. The opinion of the District Court recites that the only question presented by Noble's brief is whether the sentence was lawful. And the opinion quotes from the trial court order the sentence imposed. Likewise, the litigation is properly identified in the Notice, the sentencing error was listed in the supplemental assignment, and prejudice to the State was not mentioned in the opinion, nor is it observable in the record. We think Allen was well-decided and we reaffirm its rationale. Technicalities ought not to defeat the administration of justice. 1 We hold in favor of Noble.
Such a holding has more to commend it than harmonization...
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Walcott v. State
...of the sentencing error was ever raised in the trial court and, further, Noble had been quashed by the supreme court (Noble v. State, 353 So.2d 819 (Fla.1977)) before Engel issued and long before Smith relied on Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980), rev. denied, 392 So.2d 1375 ......
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Cantrell v. State
...(Fla. 1st DCA 1979), a per curiam affirmance without opinion. However, an illegal sentence constitutes fundamental error, Noble v. State, 353 So.2d 819 (Fla.1978), and we are at liberty to correct our previous error. Flowers v. State, 351 So.2d 387 (Fla. 1st DCA We have considered Whalen v.......
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Gonzalez v. State, 79-268
...incarceration condition invalidated, 1 notwithstanding that she failed to object in the trial court to its imposition. Noble v. State, 353 So.2d 819 (Fla.1977); Butler v. State, 343 So.2d 93 (Fla. 3d DCA The State agrees. It urges, however, that if a defendant is to be relieved of an illega......
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Walker v. State, AQ-424
...and Prob. Comm., 396 So.2d 1107 (Fla.1980). It is noteworthy that the State agreed that the sentence was unlawful. Likewise, Noble v. State, 353 So.2d 819 (Fla.1978), does not control this case. The sentence imposed by the trial court in Noble was unlawful and fundamental error. The sentenc......