Reynolds v. Cochran, 29838
| Decision Date | 21 February 1962 |
| Docket Number | No. 29838,29838 |
| Citation | 138 So.2d 500 |
| Parties | Stephen Franklin REYNOLDS, Petitioner, v. H. G. COCHRAN, Jr., Director of Division of Corrections, State of Florida, Respondent. |
| Court | Florida Supreme Court |
Claude Pepper and Claude Pepper Law Offices, Tallahassee, for petitioner.
Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
Pursuant to a mandate from the Supreme Court of the United States we issued a writ of habeas corpus, required a return and on the basis of the same referred the cause to a commissioner of this court for a hearing upon the factual issues. See Reynolds v. Cochran, 365 U.S. 525, 81 S.Ct. 723, 5 L.Ed.2d 754. Pending final decision the petitioner was released on bail.
Our commissioner has finished his assignment and we now have before us his findings and recommendations based upon the testimony of all the parties involved, including the petitioner.
The record discloses that on May 10, 1956, petitioner was convicted of the crime of grand larceny and sentenced to serve two years in prison. On December 1, 1957, with credit for gain time, the petitioner was discharged from custody, his sentence being considered completed. Some two months after his discharge, petitioner was arrested and informed against as a second offender. Said information referred to two previous convictions of the petitioner, one being the 1956 grand larceny conviction, and the other a 1934 conviction of the crime of robbery.
As a result of the aforesaid information and the proceedings before the Criminal Court of Record of Polk County, on February 20, 1958, petitioner was found guilty of the offense of 'Second Offender,' and was sentenced to confinement in the State Prison of Florida at hard labor for a term of ten years.
On August 25, 1958, the petitioner was again brought before the Criminal Court of Record of Polk County, which entered an order purporting to set aside and cancel the judgment of February 20, 1958. In the latter judgment the petitioner was sentenced to ten years' confinement with credit to be given for all time served pursuant to the grand larceny sentence of May 10, 1956, and the sentence of February 20, 1958.
In his petition for writ of habeas corpus directed to this court and his petition for writ of certiorari before the Supreme Court of the United States, the petitioner, among other things, contends that he was denied the right to counsel and that the Criminal Court of Record at the hearing held on February 20, 1958, refused his oral motion for a continuance and thus denied him the assistance of the attorney he had retained in the proceeding against him. However, our commissioner has found, as a matter of fact, that the alleged remarks by the trial court, referring to the petitioner's lack of need of counsel, were never made. The testimony of the petitioner himself supports this finding. Further, the commissioner found that the petitioner never requested a continuance in order that his counsel might arrive and that, in fact, testimony of the attorney in question discloses that the alleged employment never took place. Finally, the commissioner found that the Criminal Court of Record did not comply with all of the procedural requirements of F.S. § 775.11, F.S.A., of our Habitual Offenders law.
From the view we take of the issues presently before us, it is unnecessary to detail the trial court's deviations from the requirements of F.S. § 775.11, F.S.A. However, we remind those concerned with the administration of the Habitual Offenders statutes that the provisions of the same must be strictly complied with because of the highly penal nature of said laws
The statutes herein involved are §§ 775.09 and 775.11, Florida Statutes, F.S.A. They read as follows:
'775.09 Punishment for second conviction of felony.--A person who, after having been convicted within this state of a felony or an attempt to commit a felony, or under the laws of any other state, government or country, of a crime which, if committed within this state would be a felony, commits any felony within this state is punishable upon conviction of such second offense as follows: If the subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then such person must be sentenced to imprisonment for a term no less than the longest term nor more than twice the longest term prescribed upon a first conviction. If the subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for life or for a term of years, in the alternative, then such person must be sentenced to imprisonment for life or for any number of years not less than twenty years.
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'775.11 Procedure in prosecutions for second and subsequent offenses.--If at any time after sentence or conviction it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth either in § 775.09 or § 775.10 the prosecuting attorney of the county in which such conviction was had, shall file an information accusing said person of such previous convictions, whereupon the court in which such conviction was had shall cause said person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof, according to law, and shall require such offender to say whether he is the same person as charged in such information or not.
'Whenever it shall become known to any warden or prison, probation, parole or police officer or other peace officer, that any person charged with or convicted of a felony has been previously convicted within the meaning of § 775.09 or § 775.10 he shall forthwith report the facts to the prosecuting attorney of the county.'
The above statutes are designed to protect society from the continuing activities of habitual offenders. Such statutes are neither new to Florida nor to modern jurisprudence. Recidivist legislation identical to F.S. § 775.09 and § 775.11, F.S.A., has repeatedly withstood attacks that it violates constitutional rights against ex post facto laws, constitutes cruel and unusual punishment, denies defendants equal protection of the law, violates due process or involves double jeopardy. 25 American Jurisprudence, Habitual Criminals, §§ 5 and 6, Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917, Cross v. State, 96 Fla. 768, 119 So. 380.
The rationale upon which these statutes have been sustained is that the charge of being a second or subsequent offender does not involve an accusation of a crime other than, or separate from, the offense principally charged. The punishment awarded thereby is awarded for the last offense only and in determining the amount or nature of the penalty to be inflicted, the legislature may require the courts to take into consideration the persistence of the defendant in his criminal course. Such statutes do not create a separate offense. Milan v. State (Fla.) 102 So.2d 595, and compare 48 Columbia Law Review 241.
Recognizing the potential constitutional invalidity of the position that our act creates a separate, distinct, new offense, in Cross v. State, 96 Fla. 768, 119 So. 380, 386, we adopted the majority view of these laws:
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