State v. Febre
| Decision Date | 21 September 1945 |
| Court | Florida Supreme Court |
| Parties | STATE v. FEBRE. |
Rehearing Denied Oct. 11, 1945.
Appeal from Criminal Court of Record, Hillsborough County; L. A Grayson, Judge.
Luther W Cobbey, Co. Sol., and Paul Game, Asst. Co. Sol., both of Tampa, for appellant.
Wm. C Pierce, of Tampa, for appellee.
An information charging assault with intent to commit murder in the first degree was filed against Edmundo Febre by the County Solicitor of Hillsborough County, Florida, and upon arraignment thereto in the Criminal Court of Record he entered a plea of nolo contendere. The Honorable L. A Grayson, Judge, thereupon heard testimony and entered a judgment of conviction of the crime of aggravated assault and sentenced Febre to serve one year at hard labor in the County Jail of Hillsborough County, Florida.
The sentence was entered May 28, 1945, and a motion for a new trial filed on June 1, 1945, and overruled by the trial court on June 11, 1945. Counsel for Febre filed notice of appeal to the Circuit Court of Hillsborough County, Florida, on June 11, 1945, from the aforesaid judgment. On June 29, 1945, the State of Florida filed its notice of appeal from the sentence imposed to the Supreme Court of Florida and has lodged here a transcript of the record and copy of proceedings had in the lower court.
Counsel for Edmundo Febre moved this court to dismiss the appeal taken by the State of Florida in the case at bar and several reasons are submitted therefor. While other grounds of the motion to dismiss may have merit, we deem it necessary only to consider ground No. 2, which is, viz.:
The crime of assault with intent to commit murder in the first degree, as charged in the information, embraced lesser criminal offenses. The trial court accepted the plea of nolo contendere and then proceeded to hear testimony and to ascertain therefrom the degree of guilt for which the appellee should stand convicted. It was the conclusion of the trial court, after hearing all the evidence offered by the respective parties and argument of counsel, that the appellee was guilty of the crime of aggravated assault and so held, and entered judgment against the appellee accordingly. The effect of this adjudication was to acquit the appellee of all greater offenses charged in the information. See State ex rel. Landis v. Lewis, 118 Fla. 910, 160 So. 485; Haddock v. State, 141 Fla. 132, 192 So. 802.
Considerable space in the brief of appellant (the State of Florida) is devoted to the question of whether the appellee (Edmundo Febre) under the plea of nolo contendere, by the trial court should have been adjudged guilty of an assault with intent to commit murder in the first degree, or an assault with intent to commit murder in the second degree. Sections 784.06, 909.10, 909.11, 919.14, 919.16, Fla.Stats. 1941, F.S.A.; Pensacola Lodge No. 497, B. P. O. E. v. State, 74 Fla. 498, 77 So. 613, and citations from other jurisdictions, are cited and relied upon to sustain the contention. These authorities have been carefully...
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