Smith v. Brown

• Decision Date: 14 January 1938
• Citation: 135 Fla. 830,185 So. 732
• Parties: SMITH v. BROWN, Sheriff, et al.
• Court: Florida Supreme Court

185 So. 732

135 Fla. 830

SMITH v. BROWN, Sheriff, et al.

Florida Supreme Court

January 14, 1938

Habeas corpus proceeding by J. L. Smith against B. L. Brown, sheriff of St. Lucie county, Fla., and his deputies and agents.

Petitioner remanded to custody of named respondent.

COUNSEL Errol S. Willes, of Fort Pierce, and H. H Wells, of Tallahassee, for petitioner.

George Couper Gibbs, Atty. Gen., and Tyrus A. Nowood, Asst. Atty Gen., for respondents.

OPINION

BUFORD Justice.

This is a habeas corpus proceeding in which this court exercises original jurisdiction.

By the petition it is made to appear that at a regular term of the Circuit Court of St. Lucie County on November 27, 1937, the petitioner was adjudged guilty of the larceny of an automobile and sentenced by the trial judge to serve six months in the county jail, subject to the orders of the County Commissioners, that during the same term of the court, on December 3, 1937, the sentence was revoked and annulled and the petitioner was temporarily discharged; that at a regular term of the court on the 8th day of November, 1938, the petitioner was again brought into the Circuit Court of St. Lucie County and sentenced to serve a period of two years in the State Prison under the conviction above referred to.

It is contended that because the petitioner had begun to serve the sentence first imposed upon him the court was without authority or power to vacate and revoke the sentence, even at the same term of the court, and that because of the lack of power and jurisdiction to revoke such sentence the sentence imposed at a later date, November 8, 1938, was without force and effect.

Petitioner relies on the opinion and judgment in the case of Tillman v. State, 58 Fla. 113, 50 So. 675, 138 Am.St.Rep. 100 19 Ann.Cas. 91, in which it was said [page 677]:

'This court has decided that the right of a defendant to make a motion for a new trial within the time provided by law is not forfeited by the fact that sentence had been passed upon the defendant prior to his making such motion. Massey v. State, 50 Fla. 109, 39 So. 790. So, too, during the same term of court at which the sentence is imposed, before the defendant has begun serving such sentence, the trial judge has the power to modify such sentence. In this case it does not affirmatively appear that such defendant had begun serving her sentence.' and on the enunciation found in 8 R.C.L. page 244, Sec. 247, in which it is said:

'247. Amendment after Complete or Partial Execution.--Where a judgment has been fully satisfied by the defendant, the trial court has no power to amend it by increasing the punishment after the term at which the judgment was rendered, or even during the same term. The ends of justice will not be served by permitting the state, after the sentence of the law has been discharged, to open the case for any purpose and least of all to insert an additional penalty. To permit this would be like punishing the delinquent the second time for the same offense. Thus it has been held that where a court has imposed a fine and imprisonment when the statute confers power only to punish by fine or imprisonment, and the fine has been paid, the court cannot, even during the same term, modify the judgment by imposing imprisonment instead of the former sentence, and, the judgment having been executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court as to that offense is at an end. The rule seems to be well established that the trial court is without power to set aside a criminal judgment after it has been partly satisfied by the defendant, and impose a new or different judgment increasing the punishment, even at the same term of court at which the original judgment was imposed. And of course a judgment which has been partly satisfied by the defendant cannot be set aside by the trial court and a new judgment increasing the punishment imposed, after the term of court at which the first judgment was rendered.'

In support of the text the author cites State v. Meyer, 86 Kan. 793, 122 P. 101, 40 L.R.A.,N.S., 90, Ann.Cas.1913C, 278, in which it was held:

'The court found the defendant guilty of contempt...