Sweat v. Pettis

• Decision Date: 08 November 1946
• Citation: 158 Fla. 104,27 So.2d 827
• Parties: SWEAT, Sheriff, v. PETTIS.
• Court: Florida Supreme Court

27 So.2d 827

158 Fla. 104

SWEAT, Sheriff, v. PETTIS.

Florida Supreme Court

November 8, 1946

Appeal from Circuit Court, Duval County; Claude Ogilvie judge.

J. Tom Watson, Atty. Gen., Shannon Linning, Asst. Atty. Gen., and Wayne E. Ripley, Co. Sol., of Jacksonville, for appellant.

Evan T Evans, of Jacksonville, for appellee.

PER CURIAM.

An information in two counts was filed against Blocker Pettis on October 18th 1945.

The first count alleged that Pettis on October 10, 1945, 'not then and there being lawfully licensed and authorized to practice medicine in this State, did then and there practice medicine in treating one Effie Baker contrary to the form of Section 458.15, Fla.Statutes Annotated.'

On arraignment November 26th appellee entered plea of guilty as to the first count and was adjudged guilty as to such count. Sentence was then suspended. Appellee was not further prosecuted on the second count.

On December 13 1945, the suspension of sentence was revoked and appellee was sentencd to serve one year in State Prison and in default of payment of $100 fine to serve two years additional imprisonment.

Our records show that appeal was taken from the judgment and sentence on December 14, 1945, and that appeal was dismissed on praecipe of the appellant in that case on March 12, 1946.

Petition for writ of habeas corpus on behalf of appellee was filed March 7 1946, in Duval County Circuit Court and writ issued the same date. The record here shows that at the time the writ issued appellee was not in custody of the sheriff but was at large on a supersedeas bond. However, on March 11th he surrendered himself to the sheriff, which was just a few minutes prior to the return time named in the writ. On hearing, he was discharged and thereupon the sheriff perfected his appeal to this Court.

Appellee relies on the case of Whitehurst v. State, 105 Fla. 574, 141 So. 878. It is to be observed that the opinion in that case was filed on May 26, 1932, which was long prior to the enactment of our Criminal Procedure Act, being Chapter 19554, Acts of 1939, F.S.A. § 901.01 et seq.

This count of the information in this case cannot be said to wholly fail to state a violation of the Criminal Laws of Florida because whether it was intended to charge that the accused practiced medicine without a license from the State Board of Medical Examiners as required by Section 458.15, Fla.Statutes 1941, same F.S.A., or that the accused violated the statute against practicing medicine without having obtained an occupational license as required by Section 205.52, Fla.Statutes 1941, same F.S.A., the fact remains that it does charge that the accused was practicing the profession of a physician without having obtained a license authorizing him to do so and specifically charged that the license which he failed to have was that which was required under Sec. 458.15, Fla. Statutes Annotated.

There can be no doubt that the information here under consideration was vulnerable on motion to quash but no such motion was made and the accused cannot substitute habeas corpus for motion to quash. Taylor v. Chapman, 127 Fla. 401, 173 So. 143; In re Robinson, 73 Fla. 1068, 75 So. 604, L.R.A.1918B, 1148.

Section 142 ...