State v. Nelson
| Decision Date | 30 July 1948 |
| Citation | 160 Fla. 744,36 So.2d 427 |
| Parties | STATE v. NELSON. |
| Court | Florida Supreme Court |
Appeal from Criminal Court of Record, Duval County; Edwin L. Jones judge.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant.
Loyd Bass of Jacksonville, for appellee.
The appellee procured his release on July 14, 1947, because of the impropriety of the sentence under which he was then held, and the State thereupon, on August 27, 1947, instituted proceedings by information to have a proper sentence imposed.
This is an appeal by the State from an order granting defendant's-appellee's motion to quash an information charging appellee with being a second offender after the appellee had served the sentence imposed upon conviction of the second offense, which sentence was without consideration of the provisions of law as to second offenders.
The controlling and determining factors involved in this appeal are as follows:
On January 29 1937, the appellee, Gene Nelson, was adjudged guilty of a felony (breaking and entering a building with intent to commit a misdemeanor) and sentenced by the Criminal Court of Record of Duval County to serve a term of imprisonment; that Thereafter, on October 30, 1939, the said Gene Nelson was adjudged guilty of another felony (committed on October 16 1939) and was sentenced by the same court to serve a term of five years in the State prison; that
Thereafter, on November 2, 1939, Gene Nelson was sentenced as a fourth offender, as provided for by Section 775.10, Florida Statutes 1941, F.S.A., which sentence was voided as unwarranted by judgment dated July 14, 1947, in habeas corpus proceedings; that
On August 27, 1947, the appellee, Gene Nelson, was proceeded against by an information filed in the Criminal Court of Record of Duval County, alleging the foregoing facts, and the said Gene Nelson was subject to the punishment as provided by law, as follows:
775.09--Punishment for second conviction of felony.
'A person who, after having been convicted within this state of a felony or an attempt to commit a felony, or under the laws of any other state, government or country, of a crime which, if committed within this state would be a felony, commits any felony within this state is punishable upon conviction of such second offense as follows: If the subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then such person must be sentenced to imprisonment for a term no less than the longest term nor more than twice the longest term prescribed upon a first conviction.' Section 775.09 F.S.1941, F.S.A.
The information charging that Gene Nelson was subject to punishment as a 'second offender' was filed on August 27, 1947, at a time after Nelson had served all lawful sentences imposed against him.
On motion, the Judge of the Criminal Court of Record, on December 4, 1947, quashed the information charging that Nelson was subject to punishment as a second offender, and the State thereupon appealed said order.
This Court, in reference to the law as is now known as Sections 775.09-775.11, F.S.1941, F.S.A., has stated:
* * *' Cross v. State, 96 Fla. 768, 119 So. 380, 386.
The holding appears to comport with the general law on the subject, for in American Jurisprudence it is stated:
(Emphasis supplied). 25 Am.Jur. 260--'Habitual Criminals'--Sec. 1.
We also quote from 25 American Jurisprudence 263, 'Habitual Criminals,' Section 6:
'The enhanced punishment under such statutes is an incident of the subsequent offense only.'
The following quotation from 24 Corpus Juris Secundum, page 1143, 'Criminal Law,' § 1958 () is also in point, to-wit:
'However, statutes authorizing a more severe penalty to be inflicted on one who is a persistent offender do not create an offense, nor inflict additional punishment for the prior offense, nor do they authorize a conviction on a charge of being an habitual criminal; they merely prescribe punishment for the subsequent offense which is to be more severe, because the offender's persistence in the perpetration of crime evinces a depravity which merits greater punishment.'
The Attorney General submits that the governing statute, Section 775.11 specifically provides for the filing of the information...
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...is supported by eminent authorities: Lewis v. Commonwealth (1952), 329 Mass. 445, 108 N.E.2d 922, 35 A.L.R.2d 1277; State v. Nelson (1948), 160 Fla. 744, 36 So.2d 427; Tilghman v. Culver (Fla.1957), 99 So.2d 282; People v. Havel (1955), 134 Cal.App.2d 213, 285 P.2d 317; In re Wilson (1927),......
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State v. Fountaine, 44831
...both the original sentence and the substituted or corrected sentence have been imposed under recidivist statutes. (See State v. Nelson, 160 Fla. 744, 36 So.2d 427; People v. Waterman, 11 A.D.2d 622, 200 N.Y.S.2d The defendant also questions the trial court's authority to resentence him as a......
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Tilghman v. Culver
...credit the time petitioner was an escapee. Finch v. Mayo, Fla.1955, 79 So.2d 770. The sentencing method adopted in State v. Nelson, 1948, 160 Fla. 744, 36 So.2d 427, and generally followed by the trial court in this case, is calculated to inform the prison authorities and the prisoner of hi......
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Reynolds v. Cochran, 29838
...punishment is an incident to the last offense alone. But for that offense it would not be imposed. * * *' See also State v. Nelson, 160 Fla. 744, 36 So.2d 427, and Washington v. Mayo (Fla.), 91 So.2d When we review the facts before us in light of the statutory language and its rationale, we......