State v. Schaag, s. B-183

• Decision Date: 27 October 1959
• Docket Number: B-182,Nos. B-183,s. B-183
• Citation: 115 So.2d 783
• Parties: STATE of Florida, Appellant, v. Michael SCHAAG, Appellee. STATE of Florida, Appellant, v. Michael DROSSOS, Appellee.
• Court: Florida District Court of Appeals

Page 783

115 So.2d 783

STATE of Florida, Appellant, v. Michael SCHAAG, Appellee.

STATE of Florida, Appellant, v. Michael DROSSOS, Appellee.

Nos. B-183, B-182.

District Court of Appeal of Florida, First District.

Oct. 27, 1959.

Richard W. Ervin, Atty. Gen., George R. Georgieff, Eugene P. Spellman and Leonard R. Mellon, Asst. Attys. Gen., for appellant.

Cecil C. Jackson, Pensacola, for appellee Michael Schaag.

James E. Hertz, Pensacola, amicus curiae, for appellee Michael Drossos.

STURGIS, Judge.

These causes, which involve the same questions of law and fact, were consolidated on this appeal. Appellant seeks review of an order of the Court of Record of Escambia County whereby the sentences for crimes as originally imposed upon the appellee-defendants were vacated and another sentence imposed.

The question was raised in these causes as to whether the procedure on the part of the state by which the issues herein are presentable to this court is by way of appeal under Section 924.07(5), Florida Statutes, F.S.A., which provides for an appeal from 'the sentence, on the ground that it is illegal,' or whether the issue is presentable, if at all, by common law certiorari. As the issue here involves the validity of the sentence imposed on the appellees, appeal is a proper method of review. This conclusion is not to be construed as precluding review by common law certiorari of orders and proceedings of inferior courts in matters where no appeal or direct method of review exists, and the petitioner causes it to appear that the inferior court has proceeded without jurisdiction, or that the procedure followed therein is essentially irregular. Cacciatore v. State, 147 Fla. 758, 3 So.2d 584; State v. Andres, 148 Fla. 742, 5 So.2d 7.

The first count of the information herein jointly charged the defendants with the crime of robbery, the second count with the crime of larceny of an automobile. It developed that the automobile was also the property involved in the robbery.

Adjudication of guilt followed upon pleas of guilty to both counts of the information. The Honorable Erwin Fleet (then one of the judges of the Circuit Court of the First Judicial Circuit, in which Escambia County is located, and who by assignment was sitting as judge of the Court of Record of Escambia County) sentenced each defendant (a) to fifteen years in the state prison on the robbery (first) count of the information, (b) to two years in the state prison on the larceny (second) count thereof, (c) the sentence under the larceny count to run consecutively with that under the robbery count.

After the lapse of several terms of the trial court, during which time the defendants were serving the sentences imposed, petitions were filed before the Honorable Kirke M. Beall, one of the judges of that court, to vacate the mentioned sentences. Relying on the case of Norwood v. State, Fla., 86 So.2d 427, he thereupon entered an order holding all of the sentences to be invalid, and caused the defendants to be produced before him to be resentenced. Accordingly, an order was thereafter entered which contained a finding to the effect that the prior sentences were invalid because the larceny charged in the second count of the information occurred concurrently with and arose out of the same transaction as the crime of robbery charged in the first count and because the automobile forming the subject of the larceny under the second count was also the subject of the robbery under the first count. On that basis, the order vacated the prior sentences and resentenced each defendant to a single term of 'three (3) years at hard labor in the State Prison * * * under the first count of the information to commence with date of original sentence, June 5, 1958,' and the state appeals.

The state concedes and we agree that the sentence imposed on the conviction of larceny was invalid for the reason stated by the trial court. The state contends, however, that the original sentence imposed on the robbery count was valid in all respects; and further, that it was not subject to be set aside by the trial court after the expiration of the term of court in which it was imposed, as was done in this case.

In addition to resisting appellant's above stated position, appellees have presented the following point for determination: Whether the proceedings by which they were arraigned, convicted, and sentenced are a nullity because the circuit judge who by assignment presided thereat was not a resident of Escambia County. We first dispose of that subject.

We take judicial notice that Judge Fleet, who presided over the initial proceedings in the Court of Record of Escambia County, was at that time a duly qualified judge of the Circuit Court in and for the First Judicial Circuit of Florida, which embraces Escambia County. It is admitted that he resided in another county of the circuit. Section 10 of Article V, Constitution of Florida, F.S.A., provides that 'at the request of a judge of the court of record evidenced as now provided by law a judge of the circuit court of Escambia County may assume and perform in every respect the duties and jurisdiction of the court of record of Escambia County or a judge thereof.' It also authorizes the judge of the Court of Record of Escambia County, at the request of a judge of the Circuit Court of Escambia County evidenced as now provided by law, to 'assume and perform in every respect the jurisdiction and duties of the circuit court of Escambia County or a judge thereof, including the trial of capital cases and the power to summon and empanel a grand jury.'

There is no provision of law or of...