State v. Bateh

• Decision Date: 25 February 1959
• Citation: 110 So.2d 7
• Parties: STATE of Florida, Petitioner, v. Mussa C. BATEH, Respondent. Mussa C. BATEH, Petitioner, v. STATE of Florida, Respondent. STATE of Florida, Appellant, v. Mussa C. BATEH, Appellee.
• Court: Florida Supreme Court

Page 7

110 So.2d 7

STATE of Florida, Petitioner, v. Mussa C. BATEH, Respondent.

Mussa C. BATEH, Petitioner, v. STATE of Florida, Respondent.

STATE of Florida, Appellant, v. Mussa C. BATEH, Appellee.

Supreme Court of Florida.

Feb. 25, 1959.

Rehearing Denied April 9, 1959.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for petitioner-appellant.

Larkin & Lewis, Jacksonville, for respondent-appellee.

THOMAS, Justice.

Upon the filing of the petition of the State for a writ of certiorari to review a decision of the District Court of Appeal, First District, in Bateh v. State, Fla., 101 So.2d 869, the court proceeded to hear argument on this and two allied matters. We now undertake to answer the pivotal question common to all three cases.

A more complete statement of the facts relevant to this controversy may be found in the opinion of the district court of appeal, however, for the convenience of the reader, we relate the salient ones here.

Two informations were filed in the Criminal Court of Record of Duval County 30 August 1955. Each charged respondent, Mussa C. Bateh, in separate counts, with two violations of the narcotics law. Chapter 398, Florida Statutes 1955, and F.S.A. On 3 November 1955 the defendant entered a plea of nolo contendere to each information. The judge thereupon found the defendant guilty of the infractions but inflicted no punishment upon him. Instead, he announced that sentencing would be deferred from day to day and term to term, and jurisdiction would be reserved for that purpose until such later date, as he might deem it advisable to exercise it.

About a year later, the judge, evidently because he was apprised of three charges that had subsequently been placed against Bateh for violations of the same law, held an inquiry about respondent's conduct while he was at large on his recognizance. It should be noted here that the judge at the beginning of the hearing expressly stated that he had not placed the defendant on probation.

Following the inquiry, the judge vacated the order holding in abeyance the imposition of sentence and sentenced Batch serve two years in the state penitentiary for perpetration of the offenses charged in the first information. Later, on 9 April 1957, the judge sentenced Bateh to a like term for the offenses charged in the second information, and ordered that the terms be served consecutively.

Upon the imposition of each sentence an appeal was taken.

For logical reasons well stated, the court held that the open, unqualified, order of the trial judge deferring the imposition of sentence until such time as he considered it advisable to exercise jurisdiction was void, and that the penalties eventually fixed became effective nunc pro tunc the day respondent was adjudged guilty. And, according to the opinion on rehearing, the length of service was to be computed from that day without credit, however, for the period during which the supersedeas bonds were in effect.

It is the gist of the opinion of the district court of appeal that the practice of deferring the imposition of sentences had developed through years of usage, probably as a means to trial judges of meeting situations in which immediate passage of sentence might result in hardship or even injustice and that recognition and sanction of the procedure to which the trial judges resorted for one lawful purpose or another had occurred so often that the practice, by force of pyramided judicial opinions, had come to be regarded as the exercise of a right inherent in the courts. The so-called inherent right, said the district court of appeal, was a concept having no firm foundation. During much or most of the time the practice was developing no method for placing convicted persons on probation had been established and, as the district court indicated in its opinion, doubtless it derived from an effort to meet a need that was supplied by the enactment of Chapter 948, supra, in 1941.

Under the ruling of the district court of appeal a trial judge is, upon adjudicating the guilt of one convicted of crime, restricted to two courses, that is, he can either sentence the convict or place him on probation. The state contends that this decision is in direct conflict with decisions of this court on the same point of law, i. e., the power of a trial court to withhold the passing of sentence without placing the guilty defendant on probation. We think the state's position is sound and that, therefore, this court, by virtue of Sec. 4(2), Article V. of the Constitution as amended in 1956, F.S.A., is vested with jurisdiction to entertain, and is obligated to discuss and decide that phase of this controversy. But because of a curious sequence of events affecting this very litigation, the conclusion that a conflict arose between the decision of the district court of appeal and decisions of this court on the same point of law does not, ipso facto, result in an order interfering with that court's decision.

In a series of cases decided by the Supreme Court and cited here by the state there is consistency in the announcements that a trial judge could defer the passing of sentence from time to time and term to term and impose the sentence at any time. Illustrative of these cases are the following citations taken from the petition of the Attorney General: Carnagio v. State, 106 Fla. 209, 143 So. 162; Campbell v. State, 131 Fla. 135, 179 So. 137; Bronson v. State, 148 Fla. 188, 3 So.2d 873; Pinkney v. State, 160 Fla. 884, 37 So.2d 157; and Collingsworth v. Mayo, Fla., 77 So.2d 843. The last two of these were decided after Chapter 948, supra, the probation act, became a law, 1 July 1941; the others before that time.

In Pinkney v. State, decided in 1948, and Collingsworth v. Mayo, decided in 1955, the court clung to the view that the right to delay indefinitely and unqualifiedly the passing of sentences inhered in the trial courts. In the latter, and later, decision the court repeated the language used in Pinkney v. State, supra, that it had "always been the law of this jurisdiction...