Washington v. Mayo

Decision Date19 December 1956
Citation91 So.2d 621
PartiesIshmael WASHINGTON, Petitioner, v. Nathan MAYO, Custodian of Florida State Prison, Respondent.
CourtFlorida Supreme Court

Ishmael Washington, in pro. per.

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

THORNAL, Justice.

By petition for writ of habeas corpus the petitioner Washington seeks release from the State Prison where he is held pursuant to conviction and sentence under Sections 775.10 and 775.11, Florida Statutes, F.S.A., which are a part of our Habitual Criminal Act.

The point to be determined is the legality of the sentence to life imprisonment imposed upon the petitioner.

Some facet of this petitioner's problem has been considered by this Court on two other occasions. Washington v. Mayo, 159 Fla. 477, 31 So.2d 870; and Washington v. Mayo, Fla.1955, 77 So.2d 620, certiorari denied, 350 U.S. 851, 76 S.Ct. 91, 100 L.Ed. 757. Our prior decisions adequately set out the factual background.

On August 27, 1940, the petitioner was sentenced to six years in the State Penitentiary upon pleading guilty to the offense of entering without breaking to commit a felony. This was his fourth felony conviction. It was designated as Case No. 16932. On August 29, 1940, a fourth offender information was filed. On September 4, 1940, petitioner pleaded guilty to the fourth offender information. He was then sentenced to the 'State Penitentiary for the period of the balance of your natural life, sentence to commence after the expiration of sentence in case No. 16932.'

It is now contended that the sentence pursuant to the Habitual Criminal Information was void for the reason that the trial judge prescribed that it would begin at the expiration of the described six-year sentence. Petitioner asserts that under Section 775.11, Florida Statutes, F.S.A., the trial judge should have vacated the six-year sentence as a condition precedent to prescribing the life sentence. He takes the position that the result is that he had been twice punished for the same offense or in the alternative that he has been twice put in jeopardy for the same offense.

Pursuant to the prayer of the petition, we issued the writ and the matter now comes on for hearing on the petition and the response of the respondent.

Consistent with the recognized rule on the subject, conviction under a habitual offender statute involves neither double jeopardy nor double punishment for the same offense. Under these statutes the law simply prescribes a longer sentence for the subsequent offense. The increased punishment authorized by the statute is an incident to the last offense for which conviction was obtained. State v. Nelson, 160 Fla. 744, 36 So.2d 427. We have held that this statute does not offend the constitutional prohibition against ex post facto laws. Cross v. State, 96 Fla. 768, 119 So. 380.

Under Section 775.10, Florida Statutes, F.S.A., it is prescribed that one who is convicted of the commission of a fourth felony 'shall be sentenced * * * to imprisonment in the state prison for the term of his natural life.' In the instant case petitioner had been convicted of the fourth felony prior to the sentence under the habitual criminal statute. While it is true the trial judge prescribed that the life term should begin to run at the termination of the six-year term, the fact is that the maximum period for which one can be imprisoned is life. Therefore, when the life sentence in this case was prescribed to begin co-incident with the end of the six-year sentence, the practical effect of the prescribed sentence was to imprison the petitioner in the State Penitentiary for life. In other words, the failure...

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21 cases
  • Tyson v. Hening
    • United States
    • Virginia Supreme Court
    • 15 Junio 1964
    ...See also In Re Bean's Petition, 139 Mont. 625, 365 P.2d 936, 937; Poppe v. State, 155 Neb. 527, 52 N.W.2d 422, 426-27; Washington v. Mayo, Fla., 91 So.2d 621, 623; State v. George, supra, 48 So.2d at p. 269; Johnson v. Crouse, 191 Kan. 694, 383 P.2d 978, 982; People v. Collins, 172 Cal.App.......
  • Conley v. State
    • United States
    • Florida District Court of Appeals
    • 2 Enero 1992
    ...a second punishment for the former offenses, but is instead a "more severe punishment for the last offense." Id. Accord Washington v. Mayo, 91 So.2d 621, 623 (Fla.1956). SENTENCING ISSUE 2 Conley was convicted of armed burglary of a dwelling (Count I) and armed robbery (Count V), both first......
  • Greene v. State, 39453
    • United States
    • Florida Supreme Court
    • 30 Julio 1970
    ...'No state shall * * * pass any * * * ex post facto Law. * * *' U.S.Const. art. I, § 10.15 96 Fla. 768, 119 So. 380 (1928).16 91 So.2d 621 (Fla.1956).17 Fla.Stat. § 775.09, F.S.A.:'Punishment for second conviction of felony.--A person who, after having been convicted within this state of a f......
  • Deiter v. Com.
    • United States
    • Virginia Supreme Court
    • 18 Enero 1965
    ...See also In Re Bean's Petition, 139 Mont. 625, 365 P.2d 936, 937; Poppe v. State, 155 Neb. 527, 52 N.W.2d 422, 426-427; Washington v. Mayo, Fla., 91 So.2d 621, 623; State v. George, supra, 48 So.2d at p. 269; Johnson v. Crouse, 191 Kan. 694, 383 P.2d 978, 982; People v. Collins, 172 Cal.App......
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