State Ex Rel. Rhoden v. Chapman
| Decision Date | 20 January 1937 |
| Citation | 172 So. 56,127 Fla. 9 |
| Parties | STATE ex rel. RHODEN v. CHAPMAN. |
| Court | Florida Supreme Court |
Original habeas corpus proceeding by the State, on the relation of Norwood Rhoden, against L. F. Chapman, prison superintendent of State Prison Farm, Raiford, Fla.
Prisoner remanded to custody.
COUNSEL Wallace Tervin, of Bradenton, for petitioner.
Cary D. Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and Dewey A. Dye and Robert E. Willis, both of Bradenton, for respondent.
It is beyond the power of a court of criminal jurisdiction, after the adjournment of the term of court at which a sentence to imprisonment is imposed upon one adjudged guilty of felony, to set aside, vacate, or annul it or to change it in any substantial respect to defendant's prejudice absent the defendant's consent, unless it is done pursuant to appropriate proceedings for resentence. People v. Sullivan, 54 Misc. 489, 106 N.Y.S. 143.
But where, at the request of a convicted defendant, or at his instance or approval given during the same term at which a criminal sentence is imposed, the court has vacated or annulled its presently imposed sentence, and deferred the proposition of imposing a new sentence to a subsequent term of court to which the case is continued pending which continuance the defendant is released on bond, the court may, at such subsequent term, impose a new sentence upon the original judgment of conviction, even though such new sentence is greater, or materially different in effect from that first imposed and thereafter vacated. See Preston v. State, 117 Fla. 618, 158 So. 135; Ingram v. Prescott, 111 Fla. 320, 149 So. 369; Lovett v. State, 29 Fla. 384, 11 So. 176, 16 L.R.A. 313.
The amended return shows a case of resentence within the rule last stated, so the prisoner must be remanded to custody and it is so ordered.
Prisoner remanded.
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State v. Fountaine, 44831
...said: '* * * It is possible for the trial judge on resentencing to impose a greater sentence than he imposed before, State ex rel. Rhoden v. Chapman, 127 Fla. 9, 172 So. 56, providing the total of the term on resentencing plus the prior time served (with gain time awarded) does not exceed t......
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Goene v. State
...different in effect from that first imposed and thereafter vacated." Id. at 834, 185 So. at 733 ( quoting State ex rel. Rhoden v. Chapman, 127 Fla. 9, 172 So. 56 (1937)). The case at bar is analogous in that the original sentence was affected by some affirmative act on the part of the defen......
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Herring v. State, 81-162
... ... ex rel. Rhoden v. Chapman, 127 Fla. 9, 10, 172 So. 56 (1937) ("where, at the request of a convicted ... ...
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Michell v. State ex rel. Callahan
...v. United States, 1938, 69 U.S.App.D.C. 10, 98 F.2d 291. We are not here involved with the principle stated in State ex rel. Rhoden v. Chapman, 1937, 127 Fla. 9, 172 So. 56, to the effect that it is beyond the power of a court of criminal jurisdiction, after the adjournment of the term of c......