Pahud v. State, 77-2539
| Decision Date | 25 April 1979 |
| Docket Number | No. 77-2539,77-2539 |
| Citation | 370 So.2d 66 |
| Parties | Daniel PAHUD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Wilbert Stevenson, Jr., Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
In this case, the appellant was convicted of two counts of lewd assault on a child and sentenced to two concurrent twenty-year terms of imprisonment, notwithstanding that the statutory maximum was ten years as to each count. This excess was arrived at under the old child molester act which in 1969 was found in Chapter 801 of the Florida Statutes. It provided that any person properly convicted under an offense within the meaning of the chapter, could be sentenced to a term not to exceed twenty-five years. However, a condition precedent to any such sentencing was a court ordered psychiatric examination, which was never actually carried out.
Thereafter, in 1977 the defendant moved to vacate the sentences for lack of said examination as a result of which the sentences were vacated. At the new sentencing hearing the judge re-sentenced the defendant to two ten-year terms to run consecutively.
We would be inclined not to view this as an enhanced sentence for we see little if any difference in the result. In both events the sentence is twenty-years imprisonment. However, our research of the case law on the subject would indicate that we must reverse.
It appears that where a court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal, or authorized, portion of the sentence void, but only leaves such portion of the sentence as may be excessive, open to modification. In other words, the sentence is legal so far as it is within the provisions of the statute and only void as to the excess. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874); United States v. Pridgeon 153 U.S. 48, 62, 14 S.Ct. 746, 38 L.Ed. 631 (1894); Duggins v. United States, 240 F.2d 479 (6th Cir. 1957); Kennedy v. United States, 330 F.2d 26 (8th Cir. 1964).
Moreover, a court may not increase or make more severe the valid portions of any sentence originally imposed if service of the legal portion of the sentence has commenced. Ex parte Lange, supra; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1930); United States v. Best, 571 F.2d 484 (9th Cir. 1978); Duggins, supra; Kennedy, supra; Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972). Since the concurrent term of the sentences first imposed was a valid portion of those sentences, the change thereof to consecutive terms is held to have increased petitioners punishment. Kennedy, supra; Duggins, supra; United States v. Best, supra.
According to the above authority an exception to the general rule cannot be...
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Herring v. State, 81-162
...of this change from concurrent to consecutive sentences directly conflicts with the decision of our sister court in Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979). We believe, however, that Pahud was wrongly decided ab initio and, moreover, has been overruled, sub silentio, by Villery v. ......
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Madrigal v. State, 96-0128
...sentence on Count III to five years incarceration. See Williamson v. State, 569 So.2d 1368 (Fla. 4th DCA 1990); Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979) ("the sentence is legal so far as it is within the provisions of the statute and only void as to the excess"). However, because Co......
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Wickett v. State
...988 (Fla. 2d DCA 1980); Carvajal v. State, 392 So.2d 287 (Fla. 2d DCA 1980), rev. denied, 399 So.2d 1140 (Fla.1981); Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979). Appellee argues that, since appellant did not move to withdraw his guilty plea at the July hearing, he cannot be heard now t......
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