249 So. 2d 758 | Fla. Dist. Ct. App. | 1971
Appellant seeks review of three separate post-judgment orders by which the trial court purported to mitigate the sentences theretofore imposed upon each of the defendants in this case. It is appellant’s position that the trial court’s action was without authority of law and should therefore be reversed.
Appellees were informed against by an information charging them with larceny of two calves. Each defendant, represented by counsel of his own choice, pleaded guilty to the charge against him. After a pre-sentence investigation each appellee was adjudged guilty and sentenced to imprisonment in the state prison for a term of two years. The trial court then stayed execution of the sentences so imposed on appel-lees pending a further consideration of whether the sentences should be mitigated.
At a subsequent hearing, the court entered separate orders by which he set aside the sentences of two years imprisonment theretofore imposed on appellees Hannah and Harrell and sentenced each of them to imprisonment in the county jail for one year. The judgment of conviction and sentence of two years imprisonment there
The crucial question posed for our consideration is whether a trial court possesses the power to impose a sentence on one convicted of crime for a term less than the minimum prescribed by law. Each ap-pellee was charged under that provision of our state statute which ordains that whoever commits larceny by stealing any cow, heifer, or calf, the property of another, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.
The most perfect example of a “red cow case” which our research has ever disclosed is the decision rendered by the Supreme Court of Florida shortly after the turn of the century in the case of Jones v. State.
“Our attention is directed both by the plaintiff in error and the state to the fact that the sentence imposed by the court upon the verdict was below the minimum fixed by the statute. We are therefore constrained to reverse the cause, in order only that a proper sentence be imposed. * * * ”
In the case of Dean v. State
The foregoing principles appear to represent the majority view followed by the courts in this country.
Appellees Hannah and Harrell contend that the one-year jail sentences imposed upon them should be affirmed for a variety of reasons. They first say that since the trial court had authority under F.S. Section 948.01, F.S.A., to have withheld an adjudication of guilt and placed each of them on probation under the supervision and control of the Parole Commission, the State should not be heard to complain because the sentence imposed was more harsh than it would have been had they been placed on probation. Such argument
“ * * * [I]t is not within the historical province of the judiciary to create the terms of criminal sentences and * * the trial court may impose any sentence within the limits validly prescribed by the legislature without offending organic law * * * ”5
Secondly, appellees argue that under F.S. Section 921.18, F.S.A., the trial court could have imposed on each of the appellees Hannah and Harrell an indeterminate sentence of imprisonment for a period of six months to a maximum period of imprisonment fixed by the court. Appellees therefore reason that this statute has the effect of repealing the statute under which they were charged and convicted insofar as the minimum sentence requirement is concerned, and their sentence under the post-judgment order here reviewed should be treated in the nature of an indeterminate sentence as permitted by the statute last cited.
With regard to appellee Dull, the trial court set aside its former adjudication of guilt against this defendant and placed him on probation under supervision of the Parole Commission for a period of three years. This order was entered within the time prescribed by F.S. Section 948.01, F.S.A., and falls clearly within the authority of the trial judge in the exercise of his discretion to dispose of a case against a person convicted of a crime as in his discretion the ends of justice may require. The only objection to the trial court’s action which has been registered by appellant is that the post-judgment order complained about is not as specific as appellant considers it should have been. It is our view that appellant’s fears are not well-founded and cannot be sustained.
The post-judgment orders against appel-lees Hannah and Harrell mitigating their sentences to a term of one year imprisonment in the county jail are reversed and the cause remanded to the trial court for the imposition of proper sentences consistent with the views expressed herein. The post-judgment order against appellee Dull setting aside the judgment of conviction and
Reversed in part, affirmed in part.
. F.S. § 811.11, F.S.A.
. Jones v. State, 64 Fla. 92, 59 So. 892.
. Dean v. State, (Fla.1955) 83 So.2d 777.
.9 Fla.Jur. 267, Criminal Law, § 236. 21 Am.Jur.2d 517, Criminal Law, § 535.
. Alspaugh v. State, (Fla.App.1961) 133 So.2d 587, 588, 589.
. F.S. § 921.18, F.S.A.
“Whenever any person is convicted of a non-capital felony and the court determines that the defendant should not be placed on probation and should not be fined as the sole punishment, but should be sentenced to a term of confinement, the court within its discretion, in imposing sentence, may sentence such person to the custody of the division for an indeterminate period of six (6) months to a maximum period of imprisonment, which maximum sentence may be less than the maximum authorized by law for the felony of which such person was adjudged guilty but shall not be less than the minimum, if any, prescribed by law for such felony. * * *»