Shargaa v. State
| Citation | 102 So.2d 809 |
| Parties | Ben Babe SHARGAA, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 30 April 1958 |
| Court | United States State Supreme Court of Florida |
J. B. Patterson, Fort Lauderale, for appellant.
Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
Appellant Shargaa, who was defendant below, seeks reversal of the judgment of conviction pursuant to a jury verdict finding him guilty of being a second offender under Section 775.09, Florida Statutes, F.S.A.
The principal point involved is whether there was adequate evidence of prior conviction of a felony.
The information filed February 22, 1956, charged Shargaa with conviction of a felony in the Criminal Court of Record of Polk County on March 17, 1942. It further charged that he was convicted of a subsequent felony in the Criminal Court of Record of Broward County on September 28, 1954. The first felony consisted of the issuing and passing of a worthless check in the amount of $53.25. The second felony consisted of the issuing and passing of a worthless check in the amount of $100. See Shargaa v. State, Fla.1955, 84 So.2d 42.
For the first offense Shargaa had been placed on probation for one year. For the second offense he was sentenced to serve three months in the county jail. Following his conviction as a second offender pursuant to the information filed in this cause Shargaa was adjudged guilty and sentenced to serve eight years in the state prison.
To establish conviction of the first felony, the State produced the original court file in Case No. 8564 in the Criminal Court of Record of Polk County. The entire file was placed in evidence. The entry in the Minute Book of the Polk County Criminal Count of Record purporting to reflect the judgment rendered by the Judge read as follows:
'No. 8465 Issuing Worthless Check
'State of Florida
vs
B. Shargaa
'This March 17, A.D. 1942.'
There was no other Minute Book evidence of a judgment of conviction. However, the records in the case as reflected by the court file contained an 'Order of Probation' signed by the Judge of the Polk County Criminal Court of Record on March 17, 1942. After stating the style and number of the case (8564), the last mentioned order contained, among other provisions, the following:
'This Cause coming on to be heard, and being heard at the January Term of the aforesaid Court, before the Honorable Robert T. Dewell, Judge, and the above named defendant having: Entered a Plea of Cuilty to the Offense of Issuing Worthless Check
'The Court does hereby adjudge you to be guilty of the crime for which you have Pled Guilty.'
The order then suspends the imposition of sentence and places the defendant on probation under supervision of the Florida Parole Commission for a period of one year. This same order further directed the Clerk of the Court to file the order in his office and 'enter a copy of same in the Minutes of the Court.'
Apparently the Clerk neglected to make formal entry of the Order of Probation in the Minute Book of the Court.
There was further filed in evidence in the instant case an order terminating the probation prescribed by the above mentioned 'Order of Probation.' The order terminating the probation was incorporated in the Minutes of the Polk County Criminal Court or Record.
At the trial of the instant case the appellant objected to the introduction of the 'Order of Probation' because it had not been formally incorporated in the Minutes of the Court. His objection was overruled. When the State completed the introduction of its evidence, appellant moved for a directed verdict on the ground that there had been no legal proof of a conviction of the first felony. His motion was denied. The jurt found him guily and the judgment and sentence which we have noted were prescribed. Reversal of this judgment is now sought.
It is the contention of the appellant that the entry in the Minute Book of the Criminal Court of Record of Polk County was not a judgment of conviction and that the Order of Probation which was not formally entered in the Minute Book could not be employed as evidence of the prior conviction.
It is the contention of the State that the Order of Probation contained a formal adjudication of guilt and that the failure of the Clerk to enter the Order in the Minute Book did not invalidate the formal order of the court as evidence of the court's judgment.
Appellant refers us to Section 921.02, Florida Statutes, F.S.A., which reads as follows:
'If the defendant has been convicted, a judgment of guilty, and if he has been acquitted, a judgment of not guilty, shall be rendered in open court and entered on the minutes of the court.'
He points out that this statute requires that the judgment of the court in a criminal proceeding be 'entered on the minutes of the court.' He then insists that a failure to enter the judgment formally in the Court Minutes deprives the judgment of any validity as evidence of conviction.
At the outset we will dispose of the purported adjudication of guilt actually appearing in the Court Minutes and quoted in the forepart of this opinion. In regard to this item of evidence we are compelled to conclude that the Minute entry constituted no judgment or adjudication of guilt. Reference to the quoted entry will reveal that the judge did not formally adjudge the defendant guilty. It merely recited that the defendant had pleaded guilty and that the court 'defers the passing of sentence' during good behaviour. Formal judgment of guilt is essential to support a subsequent sentence. The Minute entry here involved fails to meet the requirements of our own decisions. Mathis v. State, 67 Fla. 277, 64 So. 944. The State in the instant case must therefore rely on the 'Order of Probation' as evidence of the prior conviction.
It will be recalled that the Order of Probation did contain a formal adjudication of guilt. It specifically stated 'The Court does hereby adjudge you to be guilty of the crime for which you have Pled Guilty.' There is no objection to combining the adjudication of guilt with the Order of Probation.
Customarily the judgment of guilt in a criminal case combines the formal adjudication of guilt with the prescription of the sentence.
The State here seems to take the position that the fact that the defendant was placed on probation in and of itself is evidence of his prior conviction. On this point we must disagree. It is the responsibility of the prosecution in a second offender proceeding to prove the prior conviction by competent evidence. This includes a proper showing that the accused was previously adjudged guilty of a felony by ...
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...84 Cal.App.3d at p. 501, 148 Cal.Rptr. 704; Robinson v. United States (8th Cir. 1929) 32 F.2d 505, 510 (opn. on rhg.); Shargaa v. State (Fla.1958) 102 So.2d 809, 813; People v. Thomas (1976) 38 Ill.App.3d 685, 348 N.E.2d 282, 284; People v. Cannon, supra, 323 N.E.2d at pp. 851-852; State v.......
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