127 Fla. 145 | Fla. | 1937
Lead Opinion
On a writ of habeas corpus issued in 1935 by this Court, the petitioner was remanded for a proper judgment of conviction and sentence to imprisonment. It was made to appear that upon an information charging a felony, and a plea of guilty, the trial court in 1925 rendered the following as a final judgment and sentence: *147
"It is the judgment of the court and the sentence of the law that you, Albert House, be taken by the sheriff or his lawful deputy to the State's Prison of the State of Florida, and be delivered to the principal keeper thereof, there to be confined in said State's Prison at hard labor for a period of," etc.
There was no adjudication of the guilt of the defendant, which rendered the judgment and sentence incomplete. See Mathis v. State,
When the petitioner, Albert R. House, was taken before the trial court for a proper sentence under the remanding order of this Court in the habeas corpus proceeding, counsel for Albert R. House presented to the trial court a motion "to discharge him from custody," a motion in arrest of judgment, and a motion "to allow him to withdraw the plea of guilty at this time and enter a plea of not guilty," the last motion being upon grounds stating the plea of guilty was offered by defendant without advice of counsel and without knowledge of its consequences. The court overruled each motion. Testimony was taken under the last motion before it was overruled.
When the defendant was taken before the court for a proper judgment and sentence, the trial court rendered the following judgment February 22, 1936:
"Now on this day came in person the defendant, Albert House, and being asked by the court whether he had anything *148 to say why the sentence of the law should not now be pronounced upon him, says nothing.
"IT IS, THEREFORE, THE JUDGMENT, ORDER AND SENTENCE of the court, that you, Albert House, for the crime of which you have been and stand convicted, be imprisoned in the State Penitentiary of the State of Florida at hard labor for a period of ten (10) years, sentence to begin at the expiration of sentence No. 259."
A writ of error was taken by the defendant House to the above judgment and sentence of the trial court. Writs of error were likewise taken to other similar judgments and sentences against the defendant.
The final order in the habeas corpus proceeding in this Court remanding the petitioner, Albert House, "to be taken before the Criminal Court of Record for a proper sentence, if any should be imposed," gave to the Judge of the Criminal Court of Record an opportunity to render a proper judgment and sentence upon the plea of guilty entered where the period of the sentence originally imposed had not been served. Even if the plea of guilty was rendered under circumstances making the judgment on the plea illegal, the remedy would be by writ of error coramnobis. Nickels v. State,
When in a criminal prosecution the court, upon a verdict of guilty or upon a plea of guilty, imposes a sentence of imprisonment upon the defendant, without any express or implied adjudication of the guilt of the defendant predicated upon the verdict of guilty or plea of guilty, Anderson v. Chapman,
The legality or propriety of a judgment and sentence to imprisonment may be reviewed and affirmed or reversed on writ of error; but a writ of habeas corpus lies to determine the validity of a restraint of liberty without directly affecting a judgment of conviction and sentence to imprisonment. The judgment and sentence is not controlled by habeas corpus, but the defendant may on habeas corpus be discharged if the judgment and sentence does not duly support the commitment to imprisonment.
Affirmed.
WHITFIELD, P.J., and ELLIS, TERRELL, BROWN and DAVIS, J.J., concur.
BUFORD, J., not participating because of illness.
Concurrence Opinion
My view is that on account of the omission of the adjudication by the court of the defendant's guilt when the sentence was originally imposed, the case was and remained in fieri until judgment and sentence were lawfully imposed. Therefore, I think it was proper for the court to entertain, take testimony upon, and rule upon petitioner's motion to withdraw his plea of guilty and plead not guilty. This the court did, and denied the motion. I find no error in this ruling. *151