State ex rel. Saunders v. Boyer, 5135

Decision Date10 July 1964
Docket NumberNo. 5135,5135
Citation166 So.2d 694
CourtFlorida District Court of Appeals
PartiesSTATE of Florida ex rel. Norman SAUNDERS, Petitioner, v. Ross E. BOYER, as Sheriff of Sarasota County, Florida, Respondent.

James W. Kynes, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for respondent.

WHITE, Judge.

Norman Saunders was adjudged in criminal contempt for a successive violation of a prohibitive order previously directed to him by the juvenile court. He was sentenced to one year at hard labor in the county jail for Sarasota County. 1 On petition for writ of habeas corpus this court issued a rule directing respondent Ross Boyer, as Sheriff of Sarasota County, to show cause why the writ should not issue.

The meagre record leaves much to conjecture. The partial record supplied by petitioner is insufficient to show that he was not accorded due process of law. On the other hand the return and supplemental record presented by the State do not affirmatively demonstrate that petitioner was accorded due process of law. We cannot consider matters dehors the record. Petitioner, however, concedes that the court had jurisdiction to sentence him for contempt and limits the issue to whether or not the twelve month sentence at hard labor was excessive under the circumstances. 2

On habeas corpus the scope of the review is to determine the legality of the imprisonment. It is not a substitute for appeal. Sneed v. Mayo, Fla.1953, 66 So.2d 865, 869; State ex rel. Linick v. Coleman 144 Fla. 458, 198 So. 100; Skipper v. Schumacher, 124 Fla. 384, 169 So. 58, certiorari denied 299 U.S. 507, 57 S.Ct. 39, 81 L.Ed. 376; Collingsworth v. Mayo, Fla., 37 So.2d 696; Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101, 21 Ann.Cas. 849. Accordingly an objection to the severity of a sentence ordinarily will not be heard on habeas corpus. See e.g. State ex rel. Johnson v. Mayo, Fla.1954, 69 So.2d 307, 308, 309; 15 Fla.Jur. Habeas Corpus § 48. However, where an attack was directed to a sentence alleged to be wholly unauthorized by law, the Supreme Court of Florida held in McDonald v. Smith, 1914, 68 Fla. 77, 79, 66 So. 430:

'A sentence of a court that is wholly unauthorized by law may be a nullity, and as such may be collaterally assailed in habeas corpus proceedings. There being no express or implied authority in the criminal court of record to impose and enforce a sentence to 'serve at hard labor on the county roads,' such a sentence is void. The sentence of the criminal court of record being void, the affirmance of it by the circuit court gave it no validity.'

Section 922.05(2) Fla.Stat., F.S.A. permits a sentence 'at hard labor' to be imposed only against a 'convict'; 3 but a criminal contempt is not a crime. Ballengee v. State, Fla.App.1962, 144 So.2d 68, 70 and cases therein cited. A contemnor, as such, is not a convict since he has not been convicted of a crime although he may have been lawfully incarcerated. 4

The question has not been raised, but it has come to our attention that a sentence at hard labor for contempt is subject to the restrictions of Sections 8 and 19 of the Declaration of Rights, Constitution of the State of Florida, F.S.A. Otherwise, in the absence of valid statutory limitations, the contempt power of the sentencing court is practically plenary. Noting that as a general rule habeas corpus does not lie to correct mere irregularities or procedures other then jurisdiction, the Supreme Court observed in State ex rel. Grebstein v. Lehman, 1930, 100 Fla. 481, 129 So. 818 that punishment for criminal contempt must be for a definite period. The court also stated:

'* * * It is not for this court to say what punishment, if any, another court should inflict for a contempt against that court, so long as it is imposed within the limitations fixed by the Constitution and the laws. If upon remandment the court below should impose a punishment beyond its power under the Constitution and statutes, the petitioner would have his remedy. But we cannot presume that the circuit court would abuse its powers. As a general rule, trial courts are very moderate and reasonable in their exercise of the power to punish for contempts.'

The sentence here assailed ordered the petitioner confined at hard labor for the period of one year, with the further provision that the petitioner shall not be eligible for trustee status during his incarceration. Courts of this state have frequently noted that the severity of the sentence should be balanced with the gravity of the offense; that the broad and inherent power to punish for contempt should be cautiously and sparingly exercised; and that the sentence should not be so excessive as to derogate judicial...

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8 cases
  • Florida Rules of Criminal Procedure., In re
    • United States
    • Florida Supreme Court
    • March 1, 1967
    ...not a crime; consequently, no criminal prosecution is involved. (Ballengee v. State, 144 So.2d 68 (Fla.App.1962; State ex rel. Saunders v. Boyer, 166 So.2d 694 (Fla.App.1964); Neering v. State, 155 So.2d 874 Sec. 3 of the Declaration of Rights, providing that the right of trial by jury shal......
  • Forbes v. State, 4D05-1554.
    • United States
    • Florida District Court of Appeals
    • July 26, 2006
    ...and to ensure that the severity of the sentence was not disproportionate to the gravity of the offense. See State ex rel. Saunders v. Boyer, 166 So.2d 694, 696 (Fla. 2d DCA 1964) (stating that a judge must ensure that "the severity of the sentence [imposed is] balanced with the gravity of t......
  • Hendricks v. State, 77-1475
    • United States
    • Florida District Court of Appeals
    • July 18, 1978
    ...offense and the demeanor of the accused and his potential for rehabilitation. Davis v. State, 123 So.2d 703 (Fla.1960); State v. Boyer, 166 So.2d 694 (Fla.2d DCA 1964). As stated in Davis v. State, supra, at page 711: "Crime must be punished but it is the consideration of the individual tha......
  • Thiede v. State
    • United States
    • Florida District Court of Appeals
    • August 10, 1966
    ...in which the particular court involved is located. The appellee has made this concession in its brief. In State ex rel. Saunders v. Boyer, Fla.App.1964, 166 So.2d 694, at 696, it was held: 'Courts of this state have frequently noted that the severity of the sentence should be balanced with ......
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