Sparkman v. State Prison Custodian

• Decision Date: 11 July 1944
• Citation: 18 So.2d 772,154 Fla. 688
• Parties: SPARKMAN v. STATE PRISON CUSTODIAN.
• Court: Florida Supreme Court

18 So.2d 772

154 Fla. 688

SPARKMAN v. STATE PRISON CUSTODIAN.

Florida Supreme Court

July 11, 1944

Mrs. G. De Milt, for petitioner.

J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for respondent.

CHAPMAN, Justice.

This is a case of original jurisdiction. Mrs. G. De Milt, 1408 Florida Avenue Tampa, Florida, in a sworn petition, represents unto this Court that her brother, Clyde R. Sparkman, alias R. C Crawford, is now being unlawfully confined to the Florida State Prison and is being unlawfully restrained of his liberties by the Honorable Nathan Mayo, as State Prison Custodian. That the unlawful detention of Clyde R. Sparkman arises out of and because of the following conditions and circumstances:

On June 12, 1939 Clyde R. Sparkman, alias R. C. Crawford, was informed against by the County Solicitor of Polk County, Florida, for the violation of several provisions of the Uniform Narcotic Drug Law. See Sections 398.01 to 398.23, Fla.Stats.1941, F.S.A. These informations were identified in the Criminal Court of Record of Polk County by numbers, viz: 5735, 5736, 5737, 5738 and 5739. Sparkman was placed upon trial before a jury in Polk County, Florida, under information No 5736, and the jury on September 26, 1939, rendered a verdict of guilty, as charged in the information, but a judgment and sentence appears never to have been entered in the Criminal Court of Record of Polk County on the aforesaid verdict.

On June 12, 1939 Sparkman was arraigned in the Criminal Court of Record of Polk County, Florida, on Information No. 5735, and then entered a plea of guilty. The information charged the violation of Subsection (1) of Section 398.19, Fla.Stats.1941, F.S.A., 'in that Clyde R. Sparkman, alias R. C. Crawford, in Polk County, Florida, on the 4th day of May, 1939 * * * did obtain a narcotic drug, to-wit: Morphine Sulphate, from a licensed druggist, by using a false name and address', contrary to the form of the statute, etc.

On September 26, 1939, the trial court entered a judgment and sentence against Sparkman on case No. 5735, to which a plea of guilty had been entered on the previous June 12, 1939. The sentence and judgment so entered imposed on Sparkman for the offense to which he had entered a plea of guilty a term of ten years at hard labor in the Florida State Prison. On September 26, 1939, on motion of the County Solicitor, orders were entered by the Criminal Court of Record transferring to the absentee docket said court cases numbered 5736, 5737, 5738 and 5739, then pending against Clyde R. Sparkman, alias R. C. Crawford.

A brief, as required by the Rules of this Court, was not filed in support of the petition for a writ of habeas corpus. Our study of the petition leads to the conclusion that it is the contention of Mrs. De Milt that her brother, Clyde R. Sparkman, is being unlawfully deprived of his liberties by the State Prison Custodian for two reasons: (1) The trial court was without legal authority to impose a sentence on Sparkman under the provisions of Section 398.22, Fla.Stats.1941, F.S.A., and the information, for a period of ten years; (2) that the maximum penalty authorized by Section 398.22 under said information was only for a period of five years. Although the five year period will expire on September 26, 1944, nevertheless Section 954.06, Fla.Stats.1941, F.S.A., authorizes gained time for good conduct and therefore the five year period expired prior to the date of application for a writ of habeas corpus, and Sparkman should now be discharged.

Honorable John C. Wynn, Assistant Attorney General, points out that Section 398.22, Fla.Stats.1941, F.S.A., provides a penalty of five years for the first offense and an enhanced penalty of ten years for any 'subsequent offense', and for this reason the ten years sentence as entered in the Criminal Court of Record of Polk County was lawful and proper and that Sparkman should be remanded to custody. Section 398.22, supra, provides:

'398.22. Punishment for violations. Any person violating any provisions of this chapter shall be deemed guilty of a felony and upon conviction be punished, for the first offense, by a fine not exceeding five thousand dollars, or by imprisonment in the state prison for not exceeding five years; and for any subsequent offense, by a fine not exceeding ten thousand dollars, or by imprisonment in the state prison for not exceeding ten years.'

This statute provides that any person violating any of the provisions of the Uniform Narcotic Law shall be guilty of a felony and upon conviction shall be punished for the first offense by a fine not exceeding five thousand dollars or by imprisonment in the state prison for a period of not exceeding five years; and 'for any subsequent offense' (any person convicted for the second time of any violation of the Narcotic Law) shall be punished by a fine not exceeding ten thousand dollars or by imprisonment for a period of not exceeding ten years in the State Prison.

The case of Smith v. State, 75 Fla. 468, 78 So. 530, involved the legal sufficiency of an indictment drawn under a statute prohibiting the sale of intoxicating liquors, having been convicted for the unlawful sale of intoxicating liquors: Then he could be indicted and tried for being a 'common liquor dealer'. Smith had previously entered a plea of guilty to a charge of selling intoxicating liquors in the County Judge's Court of Jackson County, Florida. 'Conviction, within the meaning of the statutes, signifies the finding of the jury that the prisoner is guilty.' In the case at bar the guilt of the defendant depends on the former conviction. The indictment was held insufficient.

Norwood v. State, 80 Fla. 613, 86 So. 506, involved a second offense charge. The indictment alleged that the defendant had been previously convicted of a like offense, but the court record establishing the first offense was not adduced to establish the first conviction as alleged in the indictment and accordingly the judgment of conviction was reversed. See State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228; Joiner v. State, 92 Fla. 711, 109 So. 807; Reynolds v. State, 92 Fla. 1038, 111 So. 285; Smith v. State, 96 Fla. 553, 119 So. 145; Langford v. State, 111 Fla. 506, 149 So. 570.

The case of State ex rel. Stoutamire v. Mayo, 128 Fla. 843, 175 So. 808, 809, involved a conviction of grand larceny in Duval County, Florida. Stoutamire had been previously convicted on two occasions for petit larceny. The trial court, upon entering judgment on the grand larceny offense, said "It appearing to the Court that the defendant Clyde Stoutamire was convicted on two previous charges of larceny, being cases 7616 and...