STATE EX REL. LIBTZ
v.
COLEMAN
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The court considered whether a jail sentence, once begun, can be interrupted by the state without the convict's consent. The court held that a sentence cannot be stayed or interrupted without the convict's consent, as the convict has the right to serve their sentence continuously.
No, the state cannot stay the running of a jail sentence once it has begun without the convict's consent. The convict has the right to serve their sentence in one continuous period.
“The only question necessary for us to decide is whether the State can stay the running of a jail sentence prior to expiration, once it begins, without the convict's consent.”
This quote frames the central legal issue of the case.
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Join FLexlaw to unlock all legal intelligencePetitioner was sentenced to six months in jail, served five days, and was then released at the request of the governor's executive secretary. She did …
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This case comes here on writ of error to review a final judgment in habeas corpus.
The petitioner alleges that on the 19th day of September, 1939, she was committed to the county jail of Dade County to serve a six months sentence; that five days later she was set at liberty and remained at liberty for more than six months; that she was liberated at the request of the executive secretary to the governor; that she did not seek release or consent to same.
The answer of respondent does not deny any of the aforesaid allegations.
The matter came on for final hearing upon the pleadings only and petitioner was remanded. *Page 30
The only question necessary for us to decide is whether the State can stay the running of a jail sentence prior to expiration, once it begins, without the convict's consent.
It is inconceivable how petitioner was discharged without her request or consent in one form or another. We are bound to review the judgment however upon the record as made below. It is alleged and not denied that the sentence was interrupted without petitioner's consent. Undenied allegations of the petition are taken as true. Kohl v. Lehlback, 160 U.S. 293,16 S.Ct. 304, 40 L.Ed. 432; Whitten v. Tomlinson, 160 U.S. 231,16 S.Ct. 298, 40 L.Ed. 406; Ex parte Kerekes, 274 Fed.870.
We recognize the general rule that a sentence to jail is executed only when the convict has actually suffered the imprisonment unless relieved by some competent authority. 15 Am. Jur. Criminal Law, Sec. 512.
A limitation to this general rule is sustained by logic and good authority. This limitation is to the effect that the convict has a right to pay his debt to society by one continuous period of imprisonment. In Ex parte Eley,9 Okla. Cr. 76, 130 P. 821, the defendant was sentenced to serve 30 days. He entered upon the sentence. Before serving same, the sheriff released him for a period of 55 days and then recommitted him. The Oklahoma 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 the petitioner's application for parole. If this be a fact, she might come under the rule announced in Terrell v. Wiggins and State v. Horne, supra. Judicial knowledge cannot be resorted to however to raise questions not presented by the record. 20 Am. Jur. 48, Par. 18; Mutual L. Ins. Co. v. McGrew,188 U.S. 291, 47 L.Ed. 480, 23 S.Ct. 375, 63 L.R.A. 33; Mountain View Min. Mill. Co. v. McFadden, 180 U.S. 533,45 L. Ed. 656, 21 S.Ct. 488.
Respondent's refusal to tender an issue of this fact in the court below dispensed with the necessity of proof of same. Judicial notice should be exercised with great caution. The matter must be of common and general knowledge. It must also be authoritatively settled and not doubtful or uncertain. And it must also be within the court's jurisdiction. 20 Am. Jur. 48, par. 17; Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200; Varcoe v. Lee, 180 Cal. 338, 181 P. 223, citing R.C.L.; State v. McClinton, 152 La. 632, 94 So. 141, citing R.C.L.; Texas Co. v. Brandt, 79 Okla. 97, 191 P. 166, citing R.C.L.
The judgment is reversed.
BROWN, C. J., WHITFIELD and BUFORD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
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Carson v. State, 489 So. 2d 1236 (Fla. 2d DCA 1986)…d from prison by mistake, he may be recommitted if his sentence would not have expired had he remained in confinement. Green v. Christiansen, 732 F. 2d 1397 (9th Cir.1984); White v. Pearlman, 42 F. 2d 788 (10th Cir.1930); see also, State v. Coleman, 149 Fla. 28, 5 So. 2d 60 (1941). Unless interrupted by violation of parole or some fault of the prisoner, the sentence continues to run while the prisoner is at liberty, and the prisoner’s sentence must be credited with that time. Green; White; see also, Colema…
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Brumit v. Louie L. Wainwright, 290 So. 2d 39 (Fla. 1973)…ay have been served on his conviction for armed robbery beyond his time of discharge due to these proceedings, if any. It is so ordered. CARLTON, C. J., and ROBERTS, ERVIN and ADKINS, JJ., concur. . Fla.Stat. § 947.21, F.S.A. . State v. Coleman, 149 Fla. 28, 5 So. 2d 60 (1941).…1 / 2
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Segal v. Wainwright, 304 So. 2d 446 (Fla. 1974)…on of the subsequent 9-year sentence imposed on Sept. 6, 1972, despite the fact that petitioner has been actually “free” on parole for only about 4 months since his arrest on Jan. 31, 1967, and despite the teachings of State v. Coleman, 149 Fla. 28, 5 So. 2d 60 (Fla.1941); Adams v. Wainwright, 275 So. 2d 235 (Fla.1973); Brumit v. Wainwright, 290 So. 2d 39 (Fla.1973). Inasmuch as we have not been presented with copies of underlying documents such as the sentencing orders, it is impossible for us to determi…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. Piper, 91 U.S. 37 (U.S. 1875)
- Whitten v. Tomlinson, 160 U.S. 231 (U.S. 1895)
- Kohl v. Lehlback, 160 U.S. 293 (U.S. 1895)
- Mut. Life Ins. Co. v. McGREW, 188 U.S. 291 (U.S. 1903)
- White v. Pearlman, 42 F.2d 788 (10th Cir. 1930)
- State v. Horne, 52 Fla. 125 (Fla. 1906)
- Mountain View Mining & Milling Co. v. McFADDEN, 180 U.S. 533 (U.S. 1901)
- Terrell v. Wiggins, 55 Fla. 596 (Fla. 1908)