Tilghman v. Culver

• Decision Date: 18 December 1957
• Citation: 99 So.2d 282
• Parties: Raymond E. TILGHMAN, Petitioner, v. R. O. CULVER, as State Prison Custodian, Respondent.
• Court: Florida Supreme Court

Page 282

99 So.2d 282

Raymond E. TILGHMAN, Petitioner, v. R. O. CULVER, as State Prison Custodian, Respondent.

Supreme Court of Florida.

Dec. 18, 1957.

Raymond E. Tilghman, in pro., for petitioner.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.

DREW, Justice.

Petitioner Raymond E. Tilghman challenges the legality of his retention under a fifteen year sentence for conviction of breaking and entering a store with an intent to commit a felony, and under a five year sentence for contempt of court which is to begin at the expiration of the fifteen year sentence. ¹

On October 22, 1954 petitioner entered a plea of guilty to the charge of breaking and entering a store with intent to commit a felony. On the same day the trial court sentenced him to serve ten years in the state prison. ² Petitioner subsequently filed a petition for writ of habeas corpus in this court claiming that judgment on the above plea, entered after a former judgment for the same offense had been vacated by the federal district court, placed him in double jeopardy. This court held there was no double jeopardy, but agreed with petitioner that he 'is entitled to receive full credit for the time which he served under his void sentence, along with the gain time which he earned, Perry v. Mayo, Fla., 72 So.2d 382, and that the trial court did not take all of this time into consideration.' Tilghman v. Mayo, Fla.1955, 82 So.2d 136, 137.

The mandate of this Court ordered 'that the writ heretofore issued must be, and it is hereby, quashed and the petitioner remanded to the sheriff of Polk County with directions to the trial court to vacate the sentence and upon resentence of the petitioner to take into account the time already served, plus his earned gain time.' 82 So.2d 137.

In an attempt to comply with the order of this Court mentioned above, the trial court entered the following sentence on August 22, 1955:

'Thereupon the Court being of the opinion that no legal cause has been shown why sentence should not be passed at this time, it is now, therefore, the judgment of the law and the sentence of the Court that you, Raymond E. Tilghman be taken into custody by the sheriff of Polk County, Florida, and be by him delivered to the proper authorities at the State Penitentiary at Raiford, Florida, where you are to be confined at hard labor for a term of fifteen (15) years,

'It further appearing from the records of this Court that the defendant Raymond E. Tilghman, subsequent to the time that he was remanded to the custody of the Sheriff of Polk County did on July 15, 1954, escape from the said custody and was not returned to custody of the said Sheriff until September 17, 1954, and the Court wishing to comply with the terms of the order of the Supreme Court filed on July 22, 1955, but not being able under the circumstances to determine the amount of time previously served by this defendant in connection with the sentences heretofore imposed in this case and further having no way of determining whether or not the said defendant is entitled to any earned gain time, and if so, the extent thereof,

'It is therefore Ordered that in the serving of this sentence that you, the defendant Raymond E. Tilghman, be given credit by the authorities at the State Prison at Raiford, Florida, for the time previously served under the sentences heretofore imposed by the Court in this cause, plus any earned gain time to which you may be entitled under the circumstances.'

This is the fifteen year sentence under which the petitioner is now held.

Petitioner's argument is summarized in his own words as follows:

'Wherefore, petitioner respectfully prays that this Honorable Court issue an order voiding the five year sentence for contempt of court imposed by Judge Roy H. Amidon on December 9, 1955, and issue an order directed to Judge Amidon to vacate the 15 year sentence imposed on August 22, 1955, and resentence the petitioner to some term not exceeding 10 years according to the agreement and promises made on October 22, 1954, or issue an order ruling petitioner has served all lawful sentences that could be imposed under the circumstances, and order petitioner discharged from this illegal detention, or issue an order permitting petitioner to withdraw the plea of guilty that was entered under duress and promises on October 22, 1954 and enter a plea of not guilty and go to trial on the merits.'

In the 1954 sentence which was previously reviewed by this Court, the trial judge attempted to give credit for over four years of time served under the void sentence, but did not give credit for gain time. (See footnote 2.) He had previously determined the sentence he believed petitioner should serve, after the conviction of petitioner in 1950 in a jury trial; but upon finding this to be in excess of the amount allowable for the crime, he reduced the sentence to 15 years. Although the judgment was subsequently vacated because the trial was unfair, there is no indication that the fifteen year sentence was not a proper term. The trial judge's subsequent action on the plea of guilty appears to reflect a reasserted attempt by him to sentence petitioner to serve the equivalent of the originally imposed fifteen year term, by directing a ten year term to begin as of a time which was approximately four years later than the original sentence.

Petitioner's crime is delineated in § 810.02, Florida Statutes, F.S.A., which provides a fifteen year maximum sentence, and this Court has repeatedly refused to reduce sentences which have been imposed within the maximum allowed by statute. e.g. Hutley v. State, Fla.1957, 94 So.2d 815; Emmett v. State, Fla.1956, 89 So.2d 659; LaBarbera v. State, Fla.1953, 63 So.2d 654; Walker v. State, Fla.1950, 44 So.2d 814. Even if the relevant statements of the trial judge and his pattern of sentencing are ignored under a highly technical view of 'sentence'; we find that it is possible for the trial judge on resentencing to impose a grater sentence than he imposed before. See State ex rel. Rhoden v. Chapman, 1937, 127 Fla. 9, 172 So. 56. For the above reasons we will not disturb the fifteen year term of which petitioner now complains.

The situation, which involves sentencing the defendant after he has already been imprisoned in connection with the same crime under a void judgment and maintained in custody for purposes of proper judgment is different from an original sentencing situation. ³ Here, the trial court was required to take into account imprisonment suffered under the prior void sentence. This means that the term yet to be served, plus the prior served time (with he addition of gain time earned for this period ⁴) must not exceed 15 years. It was not clear to this Court in petitioner's last appearance here that the 10 year sentence imposed on October 22, 1954 met the above requirements. However, the resentence entered by the trial court on August 22, 1955 is within the terms of the mandate of this Court issued in Tilghman v. Mayo, supra. The trial judge properly directed the prison authorities to credit petitioner with time served and earned gain time. He was not authorized to actually compute gain time, since that is within the discretion of prison officials under the circumstances of this case, § 954.06, Florida Statutes, F.S.A.; and he properly excluded from petitioner's 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...