Tanner v. Wiggins

• Decision Date: 29 October 1907
• Citation: 45 So. 459,54 Fla. 203
• Parties: TANNER v. WIGGINS, Sheriff.
• Court: Florida Supreme Court

45 So. 459

54 Fla. 203

TANNER v. WIGGINS, Sheriff.

Florida Supreme Court, Division B.

October 29, 1907

On Rehearing, November 13, 1907.

Error to Circuit Court, Polk County; Joseph B. Wall, Judge.

Habeas corpus by L. C. Tanner against John R. Wiggins, as sheriff. From a judgment dismissing the writ and remanding petitioner petitioner brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a statute authorizes a court to punish an offense by imprisonment in the county jail or by a fine, and a sentence is passed imprisoning the defendant for 12 months in the county jail, the court is without authority to pass a further sentence to the effect that upon the payment of $50 and costs the above sentence will be suspended during such time as defendant abstains from selling by himself or others any spirituous, vinous, or malt liquors, etc., and such additional sentence is void, and the payment by the defendant of the $50 and costs affords no defense against the enforcement of the sentence of imprisonment in a habeas corpus proceeding.

The right of a trial court to suspend sentence is recognized; but it has no power to suspend the execution of a sentence already lawfully imposed, except for the purpose of giving effect to an appeal, or where cumulative sentences are imposed, and in some cases of necessity or emergency.

As a general rule, after a trial court has legally imposed a sentence and the term at which it was imposed has passed, the power of the trial court over such sentence is at an end except for the purpose of its enforcement. The exclusive control of such a sentence is by our law vested in other officials.

Section 1, c. 4930, p. 58, Laws 1901, authorizing imprisonment or fine, is not affected by the previously adopted section 2351 Rev. St. 1892, authorizing the court in such a case to impose both imprisonment and fine.

On Petition for Rehearing.

Where a legal sentence has been imposed, and the party sentenced is in custody thereunder, a defect in the commitment or mittimus is not available in a habeas corpus proceeding.

COUNSEL

H. K. Olliphant, for plaintiff in error.

Wilson & Boswell, for defendant in error.

OPINION

HOCKER J.

On the 29th of July, 1907, L. C. Tanner, the plaintiff in error, filed his petition for a writ of habeas corpus in the circuit court of Polk county and presented the same to the court commissioner. The petition is as follows: 'To the Honorable J. B. Wall, Judge of the Circuit Court for the Sixth Judicial Circuit of the State of Florida:

'This the petition of L. C. Tanner, of Polk county, Florida, for a writ of habeas corpus, and thereupon said petitioner represents unto your honor and alleges as follows:

'That on the 6th day of December, 1906, he was convicted before the county court for Polk county, Florida, of being a dealer in liquors contrary to local option in said county, and in violation of the statute in such case made and provided; that said court on said day imposed a sentence upon said petitioner, requiring him, as petitioner is advised, to be imprisoned in the county jail for said county at hard labor for a term of 12 months or to pay a fine of $50 and cost of said prosecution, as shown by a copy of said judgment and sentence certified to by the clerk of said court, and which is hereto attached as 'Exhibit A' and made a part of this petition.

'That said petitioner paid said fine of $50 and said cost of said prosecution, as shown by a certificate of the clerk of said court, which is hereto attached as 'Exhibit B' and made a part of this petition.

'That on the 20th day of July, 1907, the prosecuting attorney for said county of Polk filed another information against this petitioner, charging him again with being a liquor dealer in said county contrary to local option and the statute as aforesaid, but this information or charge is distinct from and different from his said prosecution of last December.

'That after filing the said information against petitioner in July the said prosecuting attorney instructed the clerk of said court to issue a commitment, and the said clerk did issue such commitment, committing petitioner to the county jail at hard labor, and the judge of said court did also issue an order for said purpose on the 23d of July, 1907, so requiring petitioner to be placed so in jail; the said prosecuting attorney and the said judge claiming that petitioner had violated the judgment and sentence of said court made on the 6th day of December, 1906, and claiming that he should be imprisoned for a term of 12 months, etc.

'That your petitioner is now in jail at hard work on the county roads of said county, and in charge of John R. Wiggins, the sheriff of said county at Polk, all by reason of said commitment and order of said judge as aforesaid.

'Wherefore, by reason of the premises, your petitioner alleges that his said imprisonment is illegal and unlawful, and prays that your honor shall allow to him the state's gracious writ of habeas corpus, directed to the said J. R. Wiggins, sheriff as aforesaid, requiring him to produce the body of petitioner before your honor, and that his said imprisonment may be inquired into, and that he may be released and discharged therefrom.'

Exhibit A.

'In County Court, December Term, 1906.

'State of Florida v. L. C. Tanner. Dealing in Liquors.

'The defendant in above cause, being in open court and waiving arraignment, entered a plea of guilty. Whereupon the court impose the following sentence, to wit:

'It is the sentence of the law that you, L. C. Tanner, be confined in the county jail of Polk county at hard labor for the term of 12 months.

'It is further ordered that on payment of $50 and cost the above sentence will be suspended during such time as defendant abstains from selling, by himself or others, any spirituous, vinous, or malt liquors, or from staying or being where any of such liquors are sold, or from maintaining, keeping, or being interested in any place of business or institution where any of such liquors are sold or kept.

'This December 6, A. D. 1906.

'State of Florida, County of Polk.

'I, A. B. Ferguson, county clerk of said county, hereby certify the foregoing to be a true copy of the sentence of the court in the above-stated case.

'Witness my hand and seal of said court this July 29, 1907.

'[Seal of Court.]

A. B. Ferguson,

'County Clerk.'

Exhibit B.

'State of Florida, Polk County.

'I, A. B. Ferguson, clerk of the county court for said county, do hereby certify that L. C. Tanner paid the find and cost of the prosecution under the sentence and judgment of said court on December 6, 1906.

'Witness my hand and seal of said court this 29th day of July, 1907.

'[Seal of Court.]

A. B. Ferguson,

'County Clerk.'

The court commissioner, on the said 29th day of July, 1907, in the absence of the circuit judge from Polk county, granted the writ, and made it returnable before the circuit judge.

The writ of habeas corpus corpus having been issued by the clerk of said court, in accordance with the order of said court commissioner, the sheriff made his return before the judge of said court in words and figures following:

'Sheriff's Return or Answer.

'In the Circuit Court, Polk County, Florida.

'Comes now J. R. Wiggins, in answer to the ----- in the cause of the detention of one L. C. Tanner, and says: That he, as sheriff of Polk county, Florida, has the said L. C. Tanner in his custody under and by virtue of a commitment issued by A. B. Ferguson, clerk of the county court of Polk county, Florida; a copy of said commitment being hereto attached and marked 'Exhibit A' and made a part of this answer. That he also holds the said L. C. Tanner in his custody under and by virtue of an order made and entered by Hon. W. S. Preston, judge of the county court of Polk county, Florida, said order being hereto attached and marked 'Exhibit B.' That said order of the judge of the county court was issued and based upon information furnished by him, the said J. R. Wiggins, sheriff of Polk county; he, the said J. R. Wiggins, having raided the said place of business of the said L. C. Tanner, and found a lot of intoxicating liquors in his possession, to wit, nine (9) barrels of beer, Hoffine, and one (1) barrel of gin, and two cases of liquors, and that the said L. C. Tanner had violated his agreement not to sell or caused to be sold, either by himself or any other, any intoxicating liquors, and was staying where and maintaining a place for the sale of intoxicating liquors. That said raid was made on the 20th day of July, A. D. 1907.

'J. R. Wiggins, Sheriff of Polk County.'

Exhibit A.

'To the Sheriff of Said County--Greeting: Whereas, L. C. Tanner having been duly convicted in our county court in and for said county of dealing in liquors, and judgment having been pronounced against him that he be confined in the county jail at hard labor for a period of 12 months, all of which appears of record in said court: Now this is to command you, the said sheriff, to take the said L. C. Tanner to the county jail and safely keep him there until he be thence discharged by due course of law.

'Given under my hand and seal this 22d day of July, A. D. 1907.

'[Seal]

A. B. Ferguson,

'County Clerk.'

'A true copy.

'Attest: A. B. Ferguson, County Clerk.'

Exhibit B.

'In County Court, in and for Polk County, Florida.

'State of Florida v. L. C. Tanner. Dealing in Liquors.

'To the Sheriff of Said County--Greeting: Whereas, on the 6th day of December, A. D. 1906, the defendant, L. C. Tanner, was brought into open court and entered a plea of guilty to the charge preferred against him, and upon the same day it was by the court ordered and adjudged that he be...