Shelby v. State
| Decision Date | 21 November 1944 |
| Citation | 155 Fla. 182,21 So.2d 787 |
| Parties | SHELBY et al. v. STATE. |
| Court | Florida Supreme Court |
Appeal from Court of Record, Escambia County; Ernest E mason, judge.
D. W Berry, of Pensacola, for appellant.
J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for appellee.
The court is asked to dismiss an appeal taken by the appellants from an adverse judgment and sentence.
On February 3 1944, the appellants, Marvin Shelby and Robert Brill, were found guilty by a jury of the larceny of a hog. On February 4, 1944, the defendants filed their motion for new trial. On the same day the trial court entered judgment, and sentenced the defendants without disposing of the pending motion for new trial. On July 6, 1944, the trial court entered its order denying the pending motion for new trial. The following day the defendants took and entered an appeal to the Supreme Court of Florida from the judgment of conviction. The State of Florida moves to dismiss the appeal on the ground tat the appeal was not taken within ninety days from the entry of judgment and sentence, as required by Sec. 924.09, Florida Statutes 1941, F.S.A.
Under the statutes of this state a motion for new trial in a criminal case raises for determination alleged prejudicial errors concerning matters in pais occurring during the course of the trial. See Sec. 920.05, Florida Statutes 1941, F.S.A. So long as the motion is pending the cause is in the breast of the court. The trial court in its discretion may sentence the defendant either before or after the filing of a motion for new trial. Sec. 920.07, Florida Statutes 1941, F.S.A. If on motion for new trial seasonably filed after entry of judgment and sentence a new trial is granted the new trial proceeds in all respects as if no former trial had been had. Sec. 920.09, Florida Statutes 1941, F.S.A. In such event the verdict judgment and sentence entered on the first trial amounts to nothing, so far as fixing the degree of guilt and punishment of the defendant is concerned; except that where the offense charged is divided into degrees and the defendant has been convicted of a lesser degree, he cannot on the new trial be prosecuted for a higher degree of the same offense than that found by the verdict. See Sec. 920.09, Florida Statutes 1941.
When all these facts are taken into consideration, we think it clear that for the purpose of taking an appeal the character of...
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...denied 131 Fla. 862, 180 So. 382; Cole v. Walker Fertilizer Co., 147 Fla. 1, 1 So.2d 864; Shelby v. State, 155 Fla. 182, 20 So.2d 500, 21 So.2d 787; Kent v. Marvin, Fla., 59 So.2d 791. And except for the fact that 31 F.S.A. Equity Rule 71 specifically provides that no petition for rehearing......
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King v. State
...judgment and sentence prior to filing a motion for new trial has been recognized for quite some time in Florida. See Shelby v. State, 155 Fla. 182, 21 So.2d 787, 787 (1944). Moreover, the courts have specifically held that if an order is entered granting a new trial, the order acts to abrog......
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Harper v. State, 35454
...was attempting a somewhat delayed, but still timely, appeal from his original conviction. See Shelby v. State, 155 Fla. 182, 20 So.2d 500, 21 So.2d 787. In making this attempt, Harper requested that counsel be appointed to represent him on direct appeal. The trial judge denied this request,......
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Costello v. State, 39995
...from date of entry of the order denying the motion for new trial, not from the date of entry of the prior judgment. Shelby v. State, 155 Fla. 182, 21 So.2d 787 (Fla.1944). Assuming arguendo that the June 19 motions may be treated collectively as a motion for new trial or in arrest of judgme......