Perry v. Mayo
| Decision Date | 04 May 1954 |
| Citation | 72 So.2d 382 |
| Parties | PERRY v. MAYO, Prison Custodian. |
| Court | Florida Supreme Court |
Irvin Perry, in pro. per.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.
The court granted a writ of habeas corpus upon the petition of Irvin Perry who challenged the validity of a sentence committing him to the state prison for life because he was an habitual offender as defined in Sec. 775.10, Florida Statutes 1941, and F.S.A.
It appears from the record that in an information the petitioner was charged with having been convicted 28 June 1935 of the crimes of grand larceny and of breaking and entering with intent to commit grand larceny and sentenced to serve fifteen months: with having been convicted 21 October 1942 of the crime of breaking and entering with intent to commit petit larceny and sentenced to serve three years; with having been convicted 26 September 1946 of the crimes of grand larceny and of breaking and entering with intent to commit grand larceny and sentenced to serve five years; and with having been also convicted 26 September 1946 of the crime of breaking and entering with intent to commit petit larceny and sentenced to serve five years. The sentences for the last two offenses were ordered to be served consecutively.
When the sentence of life imprisonment was imposed the last two sentences were revoked as required by See. 775.11, Florida Statutes 1941, and F.S.A. It is not possible to ascertain from the record whether the first two sentences were served; nor can it be determined from the information when any of the four offenses were committed.
Obviously, the information charging the petitioner with being a fourth offender was deficient because we have repeatedly held that when two of he four convictions required to invoke the statute are shown to have been obtained the same day, the invalidity of the information to allege facts justifying a life sentence is obvious. Moreover, there is no need further to discuss this feature of the present case because the Attorney General concedes that the life sentence is invalid.
However, it is insisted that the information is sufficient to charge the petitioner as a second offender and that he should be remanded to the trial court for sentence under Sec. 775.09, Florida Statutes 1941, and F.S.A.
This position has sent us on an excursion of our opinions with reference to the showing that must be made in order to impose the added punishment provided by Sections 775.09 and 775.10, supra.
We decided in Joyner v. State, 158 Fla. 806, 30 So.2d 304, 306, that under these laws 'the information * * * must allege and the evidence must show that the offense charged in each [original] information subsequent to the first was committed and the conviction therefor was had after the date of the then last preceding conviction.' (Emphasis supplied.) In that case the Court was dealing primarily with Sec. 775.10, supra, but the principle announced was not inappropriate to Sec. 775.09, supra, because in the latter statute it is expressly provided that 'A person who, after having been convicted * * * of a felony * * * commits any felony * * * is punishable upon conviction of such second offense' as prescribed in that law. (Emphasis supplied.)
So the prerequisite of establishing the commission and conviction of an offense before commission and conviction of the succeeding offense is common to both statutes.
Our trouble lies in harmonizing the decisions since Joyner v. State, some of which seem to veer from the rigid rule there pronounced but in most of which the opinion in Joyner v. State was cited.
A few months after the opinion was filed in Joyner v. State, supra, the same author with the same members of the Court participating referred to that decision but said it did not apply in the case then under consideration because it appeared in the information that periods of time had elapsed between convictions that were longer than the sentences imposed. Thus was introduced the principle that in such circumstances an inference could be indulged that in each case, after the first, commission and conviction had occurred after the preceding conviction; and this being so the rigid rule announced in Joyner v. State, supra, was relaxed. Washington v. Mayo, 159 Fla. 477, 31 So.2d 870.
...
To continue reading
Request your trial
-
Montone v. State
...for the preceding predicate crime. State v. Carlson, 560 P.2d 26 (Alaska 1977); Hall v. State, 473 A.2d 352 (Del.1984); Perry v. Mayo, 72 So.2d 382 (Fla.1954); Miller v. State, 275 Ind. 454, 417 N.E.2d 339 (1981); State v. Tillman, 228 N.W.2d 38 (Iowa 1975); State v. Wilson, 230 Kan. 287, 6......
-
State v. Linam
...it may be implied that commission occurred in each case, but for the first, after the conviction for the preceding crime. Perry v. Mayo, 72 So.2d 382 (Fla. 1954). This argument is not persuasive. It calls for speculation. There is a reasonable hypothesis that the real facts may not support ......
-
Tilghman v. Culver
...entitled to receive full credit for the time which he served under his void sentence, along with the gain time which he earned, Perry v. Mayo, Fla., 72 So.2d 382, and that the trial court did not take all of this time into consideration.' Tilghman v. Mayo, Fla.1955, 82 So.2d 136, The mandat......
-
State v. Conley, 56929
...Cooper v. State, 284 N.E.2d 799, 803 (Ind.1972). This is the general rule. Moore v. Coiner, 303 F.Supp. 185 (N.D.W.Va.1969); Perry v. Mayo, 72 So.2d 382 (Fla.1954); House v. Commonwealth, 466 S.W.2d 949 (Ky.1971); State v. Harrison, 359 Mo. 793, 223 S.W.2d 476 (1949); Ferrell v. State, 397 ......