BEN TERRELL, PLAINTIFF IN ERROR,
v.
J. R. WIGGINS, SHERIFF, AND WIGGINS & RIGGINS LESSEES OF COUNTY CONVICTS, DEFENDANTS IN ERROR
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Ben Terrell sought discharge from his sentence, arguing he was entitled to release after twelve months. The Florida Supreme Court affirmed the circuit court's denial, holding that expiration of time without actual imprisonment does not constitute execution of a sentence.
A defendant is not entitled to discharge merely upon the expiration of time if he has not actually served the full term of imprisonment imposed. Expiration of time without imprisonment is in no sense an execution of the sentence.
“the law does not contemplate that the court in fixing the punishment shall also fix the beginning and ending of the period during which the imprisonment shall be suffered”
Establishes that timing of sentence execution is distinct from the sentence itself
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Join FLexlaw to unlock all legal intelligenceTerrell was sentenced by a county court to a term of imprisonment. The circuit court found that Terrell had suffered only about one-sixth of the impos…
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Hooker, J.,
(after stating the facts.)—It is contended here that the plaintiff in error was entitled to his discharge after the expiration of twelve months from the date of the sentence, and Miller v. State, 15' Fla. 575, is relied on to support this contention. Subsequent to the-decision in that case the question involved was very thoroughly examined in the case of State v. Horne, 52 Fla.. 125, 42 South. Rep. 388. There is no bill of exceptions in this case and it will be observed that the judge below finds that the petitioner has only suffered about one-sixth of the term of imprisonment imposed upon him by the judgment of the county court, and that during the balance of the term -he was at liberty with his own consent, if not at his own request. He therefore refused to discharge the plaintiff in error. This ruling of the circuit judge was in harmony with the principles o.f the case of State v. Horne, supra. On page 135 the court says: “the law does not contemplate that the -court in fixing the punishment shall also fix the beginning and ending of the period during, which the imprisonment shall be suffered. The time fixed for executing-a sentence, or for the .commencement of its execution, is not one of its essential elements, and strictly speaking, is not a part of the sentence at all. The essential portion of the sentence is the punishment, including-the kind of punishment and the amount thereof without reference to the time when it shall be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, should as a rule be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. Expiration of the time without imprisonment is in no sense an execution of the sentence.” It is true that in this case the county judge does not fix the time for the beginning of the sentence as was done in the Horne case; but this circumstance adds greater force to the statement “expiration of time without imprisonment is in no sense an execution of the sentence,” for the circuit judge finds that only about one-sixth of the time of imprisonment imposed had had been suffered by the petitioner and .that during the balance of the term he was at liberty with his own consent if not at his own recpiest. We thoroughly agpee with the circuit judge that the petitioner was not entitled to be discharged, and his order is hereby affirmed.
Taylor and Parkhill, JJ., concur;
Shackleford, C. J., Cockrell and Whitfield, JJ., concur in the -opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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S. Cotton Oil Co. v. Anderson, 80 Fla. 441 (Fla. 1920)
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State Ex Rel. Libtz v. Coleman, 5 So. 2d 60 (Fla. 1941)…a court held the sentence executed. This conclusion is sustained by Blackwell v. State, 19 Ala. App. 553, 99 So. 49; Thomas v. State, 25 Ala. App. 576,151 So. 473; White v. Pearlman, 42 F. 2d 788. This case is distinguished from Terrell v. Wiggins, 55 Fla. 596, 46 So. 727 and State v. Horne, 52 Fla. 125, *Page 31 42 So. 388 on factual grounds. In each of those cases the convict had agreed or acquiesced in the interruption of the sentence. It is urged by respondent that we should take judicial notice of t…
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Brooke v. State, 99 Fla. 1275 (Fla. 1930)…time without imprisonment is in no sense an execution of, the sentence.” State v. Horne, 52 Fla. 125, 135 text, 42 So. R. 388, 7. L. R. A. (N. S.) 719. The above principle of law is also quoted and followed in the later case of Terrell v. Wiggins, 55 Fla. 596, 46 So. R. 727, 127 A. S. R. 196. The three points: (1) as to the duplicity of the indictment, (2) as to the alternative penalty, and (3) as to the power of a trial court to fix the time when a sentence should begin to run,, should not be overlooke…
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- State v. Horne, 52 Fla. 125 (Fla. 1906)