Ellis v. State , 100 Fla. 27 ( 1930 )

There is only one question presented by the record in this case and that is the sufficiency of the judgment as pronounced against the defendant by the court of crimes of Hillsborough County in which he was tried. A writ of error was taken from the circuit court to that judgment and the judgment was affirmed, thereupon the accused came here by writ of certiorari contending that the judgment entered by the court of crimes was ineffective because it did not adjudicate the guilt of the accused, therefore the circuit court did not proceed in accordance with the essential requirements of the law in affirming the judgment. It follows that if such contention is sound, the circuit court should have remanded the case for a proper judgment.

The facts are as follows. Ellis and two others were informed against by the solicitor for the County of Hillsborough on the criminal charge of unlawfully transporting alcoholic and intoxicating liquors from one point in the county to another. Ellis pleaded not guilty. The information in the second count charged the three persons with unlawfully having in"his" possession intoxicating beverages. After the plea of not guilty by Ellis the information was amended without leave of court by substituting the word "their" in place of the word"his," so that the information thereafter read "did unlawfully have in their possession" instead of "did unlawfully have inhis possession." The amendment did not affect the substance of the offense charged. There was, therefore, no need to plead to it as amended nor indeed did Ellis ask permission to do so but went to trial upon his plea of not guilty.

The verdict rendered was as follows:

"3/30/1928.

"We the jury find the defendant J. H. Ellis, guilty as charged in the second count of the information, so say we all.

H. E. Burchard."

Motions for a new trial and in arrest of judgment were overruled and the court entered the following judgment:

"April 7, 1928.

"It is the judgment of the court and the sentence of the law, that you J. H. Ellis, pay a fine of $300 and in default of payment of said fine you will be confined in the county jail for a period of (3) months.

"W. MARION HENDRY, "Judge Court of Crimes."

That judgment is attacked as invalid on the ground that the judge of the court of crimes did not in the judgment entered "adjudicate" the convicted man to be "guilty" of the offense with which he was accused, tried and convicted.

In the case of Jacksonville, T. K. W. Ry. Co. v. Boy,34 Fla. 389, 16 So. R. 290, no judgment of the county judge's court, where the case was originally tried, appeared in the record. It was held that the judgment of affirmance by the circuit court was invalid and was quashed.

In Lovett v. State, 29 Fla. 356, 11 So. R. 172, the point was not involved. The judgment of conviction was reversed because the record proper showed the "plaintiff in error has been tried and found guilty of murder without being personally present at the trial."

In Mattair v. Furchgott, 44 Fla. 620, 32 So. R. 925, the order appealed from did not appear in the record so the appeal was dismissed on authority of Jacksonville, T. K. W. Ry Co. v. Boy, supra.

The Attorney General states in the brief filed in behalf of the State that it "must be conceded that the record does not show a valid judgment," and cites Maniscalco v. State, 98 Fla. 468, 123 So. R. 922; Tootle v. State, 98 Fla. 469, 123 So. R. 922; Kuhn v. State, 98 Fla. 206, 123 So. R. 755.

In the case of Smith v. State, 75 Fla. 468, 78 So. R. 530, the indictment sought to charge Smith with the offense of unlawfully selling intoxicating liquors. The first offense was charged in the following language: "that the said J. J. Smith had theretofore prior to said sale pleaded guilty in the County Judge's Court of Jackson County, Florida, of the like offense." Under the statutes as they then existed the sale of intoxicating liquor in a county which, under the provisions of Article XIX, Constitution, had voted against such sale, was a misdemeanor, but the sale in such a county "having been before convicted of the like offense" was denounced as a felony. The Court held in the indictment insufficient as charging a second offense. The opinion discussed the meaning of the word "conviction" as used in. the statute and points out that as commonly used describes the effect of the guilt of the accused as judicially proved, but where pleaded or given in evidence in another case it sometimes is used in a more comprehensive sense including the judgment of the court. The conclusion was that the indictment did not charge a former "conviction."

In the case of Pensacola Lodge No. 497, B. P. O. E., v. State, 74 Fla. 498, 77 So. R. 613, this Court said, where a plea of "nolo contendere is accepted it is not necessary in passing sentence for the court to adjudge the party to be guilty, for that follows as a legal inference from the implied confession in the plea; but the court should adjudge that the defendant is convicted of the offense charged, and the sentence which follows should impose the penalty as provided by law." The purported judgment in that case merely recited that the defendant had entered a plea of nolo contendere which was followed by the words "it is considered by the court that the defendant do forfeit and pay," etc. The Court held that such a judgment was not an "adjudication of conviction."

In the Maniscalco, Kuhn and Toole cases, supra, the judgment entered was in the same words as the first few words of the judgment in the present case, viz: "It is the judgment of the court and sentence of the law, that you," etc. In both cases there was a trial by jury and conviction. The offense charged in each case was felony.

The Court has thus definitely decided that such a form of judgment is invalid. There can be no distinction in such matters between a case of misdemeanor and a felony. They are each criminal offenses and liberty of the accused is as much involved in one as the other. I think, therefore, that the position of the Attorney General is, therefore, correct and is fully justified by the cases cited. I, therefore, agree to the conclusion that the judgment of affirmance should be quashed. The trial court has the power to enter a correct judgment. Pittsburg Steel Co. v. Streety, 60 Fla. 183, 53 So. R. 505.

The opinion prepared by Commissioner Andrews is most persuasive but in view of the former decisions of this Court I am constrained to hold that the judgment was invalid.