State Ex Rel. Mcguire v. Mayo
| Decision Date | 28 June 1937 |
| Citation | 175 So. 732,128 Fla. 699 |
| Parties | STATE ex rel. McGUIRE v. MAYO, Custodian of State Prisoners. |
| Court | Florida Supreme Court |
Rehearing Denied July 26, 1937.
Original habeas corpus proceeding by the State, on the relation of John McGuire, against Nathan Mayo, as Custodian of State Prisoners.
Habeas corpus quashed.
On Petition for Rehearing.
COUNSEL E. L. Bryan, of Tampa, for petitioner.
Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for respondent.
This is an original proceeding in habeas corpus in which the petitioner challenges the sufficiency of the judgment which was entered against him in the criminal court of record of Volusia county, Fla., at the July, 1931, term of that court.
The judgment and sentence was in the following language, to wit:
'Minutes of the Criminal Court of Record of Volusia County, State of Florida,
'State of Florida vs John McGuire
'Sentence
'Robbery while armed.
'Now again comes the defendant, John McGuire, in proper person Whereupon, it is adjudged by the jury that the said defendant is guilty of the offense of Robbery while Armed, as charged in the Information herein, and the said defendant being asked by the Court, if he had anything to say why the sentence of the law should not be pronounced upon him, and saying nothing sufficient; Therefore, it is the Judgment, Order and Sentence of the Court, that you, John McGuire, be taken by the Sheriff of Volusia County Florida, or his lawful Deputy to the State Penitentiary of the State of Florida, and there be delivered to the principal officers, and there be confined in the said Penitentiary at hard labor for the period of Fifteen Years from the date of your incarceration therein.
'Bert Fish
'Judge, Criminal Court of Record, Volusia County, Florida.'
It is the contention of the petitioner that this judgment is without force and effect as an adjudication of guilt, because of the use of the words 'by the jury' therein.
The judgment was inartfully framed, but, as we construe it, it meets the rule laid down in section 99 of Freeman on Judgment (5th Ed.) which we adopted in the case of Ellis v. State, 100 Fla. 27, 129 So. 106, 110, 69 A.L.R. 783, which is as follows:
'A Judgment of Conviction may be said to consist of two parts, to wit: 1. The facts judicially ascertained, together with the manner of ascertaining them, entered of record; 2. The recorded declaration of the court pronouncing the legal consequences of the facts thus judicially ascertained. Both of these parts are equally necessary in the entry of a judgment of conviction. 'In the first part it is usual and proper to set forth in the minutes of the court the title and number of the case, the calling of the case for trial, the appearance of the parties, the plea of the defendant, and if 'not guilty' the selection, impaneling, and swearing of the jury, the submission of the evidence, the charge of the court, the return of the verdict, and the finding of the jury. In the second part it should be declared upon the record, in connection with the verdict, in the event of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury, and that the defendant be punished as it has been determined by the jury--in cases where they have the right to determine the amount, or the duration and place of punishment--setting forth particularly the amount, or the duration and place of punishment, in accordance with the nature and terms of the punishment prescribed in the verdict.”
In the case of Mathis et al. v. State, 67 Fla. 277, 64 So. 944, this court approved a judgment and sentence in the following language:
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