Roberts v. State
30 Fla. 82
Fla.
1892
Check Treatment
Raney, C. J.:

A separate indictment was presented by the grand *83jury, at the Spring term of Baker county Circuit Court, in the present year, against each of the plaintiffs in error, charging him with a violation of the statute prohibiting the sale of spirituous liquors, wines or beer without having obtained a Stаte license therefor, such offense being a misdemeanor; and a pilea of guilty having been entered by the defendants, the court prononced sentence of judgment, in each ■case, to the effect that the State recover of the defendant the sum of two hundred and fifty dollars and costs, and that the defendant stand*committed to the sheriff until the fine and costs are paid.

The error assigned is as to the sentence, and is based on the act of June 12th, 1891, entitled “An act regarding sentences in criminal cases,” Chapter 4026 Laws of Florida, p. 55, acts of 1891.. The first sеction of this statute provides that “whenever any court or judge shall under the criminal laws of the State sentence and adjudge a person to pay a fine, or a fine and •costs of prosecution, such court dr judge shall also provide in such sentence a period ‍​​​‌​​​​​​​‌​​​​​‌‌​‌‌‌​‌‌​​‌‌‌​‌​‌‌‌​​​‌​‌​​​‌​‍of time for which such person shall be imprisoned in -the county jail in ■default of payment of the same,” and the second section makes provisiоn on the same principle for cases of fine and imprisonment in еither the county jail or the State prison. The third section declares that “upon the expiration of the period of imprisonment fixed аs to such default in payment of the fine, or fine and costs, the prisonеr shall be discharged from custody.”

*84The contention is that the sentencе is erroneous and contrary to law, in that it does not fix a period of imprisonment of the defendant in default of payment of the fine and сosts'. Of course the clause, that the defendant shall stand committed tо the sheriff until the fine and costs are paid, is simply the award of the common law process of a capias against the body of the accused, and ‍​​​‌​​​​​​​‌​​​​​‌‌​‌‌‌​‌‌​​‌‌‌​‌​‌‌‌​​​‌​‌​​​‌​‍not an adjudication of punishment; Ex parte Bryant, 24 Fla., 278, 4 South Rep., 854; Ex parte Pells, 28 Fla., 67, 9 South. Rep., 833; Bishop’s Crim. Pro. (3rd ed.), sections 1301-1304; Caldwell vs. Stаte, 55 Ala., 133; and the purpose of the statute under consideration was nоt to impose new or different punishment on one found guilty of a criminal оffense but rather to provide (in response to the constitution’s command that ‍​​​‌​​​​​​​‌​​​​​‌‌​‌‌‌​‌‌​​‌‌‌​‌​‌‌‌​​​‌​‌​​​‌​‍‘ ‘indefinite imprisonment shall not be allowed,” sec. 8, Declarаtion of Rights) against indefinite detention and incarceration heretofore resulting from the non-payment of fines and costs in criminal casеs. Ex parte Pells, supra.

"It was the duty of the court under this statute to make provision in each sеntence for a term of imprisonment in case of default in paymеnt of the fine and costs. The omission is error and prejudicial to the defendants, and consequently the judgments must be vacated and the causes remanded, not, however, for a new trial, but simply for a proper sentence, which sentence the defendants, under their recognizanсes, must appear and receive. Where error is confined to the *85sentence solely, we fail to see any satisfactory reаson for granting a new trial or why it should effect any prior step in the cause, but are satisfied that such error should not be given ‍​​​‌​​​​​​​‌​​​​​‌‌​‌‌‌​‌‌​​‌‌‌​‌​‌‌‌​​​‌​‌​​​‌​‍a retroactive affect. 1 Bishop’s Crina. Pro., sections 1373, 1374; McClellan’s Digest, section 5, p. 455, section 7, p. 456; Revised Statutes, sections 2974, 2977; Keech vs. State, 15 Fla., 591; Palatka & Indian River Ry. Co. vs. State, 23 Fla., 546, 559, 3 South. Rep., 158; Lacy vs. State, 15 Wis., 13; Kelly and Little vs. State, 11 Miss. (3 Smedes & M.), 518; Oliver vs. State, 6 Miss. (5 Hоward), 14; Drew vs. Commonwealth, 1 Wharton (Penn.), 279; Beale vs. Commonwealth, 25 Penn. St., 11; People vs. Riley, 48 Cal., 549; Brown vs. State, 13 Ark. (8 English), ‍​​​‌​​​​​​​‌​​​​​‌‌​‌‌‌​‌‌​​‌‌‌​‌​‌‌‌​​​‌​‌​​​‌​‍96; State vs. Smith, 6 Blackf., 549.

Judgment will be entered in this court in each case that it be remanded for proceedings in accordance with the above views.