WALKER
v.
STATE
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Walker was convicted of assault with intent to commit manslaughter after being charged with assault with intent to commit murder in the first degree. He appealed on grounds that no such crime existed under Florida law and that his sentence was excessive, but the Florida Supreme Court affirmed his conviction and rejected both arguments.
Assault with intent to commit manslaughter is a recognized offense under Florida law, and a five-year sentence is not excessive because it falls within the statutory range of penalties for the offense. The conviction is affirmed.
[1] A defendant charged with a greater offense who is convicted of a lesser included offense cannot challenge the validity of the conviction when ample evidence supports it.
[2] Appellate courts will not review the excessiveness of a sentence that falls within the statutory range prescribed for the offense of conviction.
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Aside from the fact that this court has recognized such an offense, Lassiter v. State, 98 Fla. 370, 123 So. 735, we have but to say with reference to this point that there was ample proof that the appellant committed the crime charged in the information and in such situation he is not in a position forcefully to complain of his conviction of an offense of lesser degree.”
Establishes that assault with intent to commit manslaughter is a recognized crime and that the appellant cannot challenge conviction for a lesser-included offense when ample evidence supports the original charge.
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Join FLexlaw to unlock all legal intelligenceWalker was tried on an information charging assault with intent to commit murder in the first degree. The jury found him guilty of the lesser included…
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The appellant was tried on an information charging him with assault with intent to commit murder in the first degree and was found guilty of assault with intent to commit manslaughter. He challenges here the validity of the judgment finding him *815 guilty of that offense because, he says, there is no such crime under the laws of this state.
Aside from the fact that this court has recognized such an offense, Lassiter v. State, 98 Fla. 370, 123 So. 735, we have but to say with reference to this point that there was ample proof that the appellant committed the crime charged in the information and in such situation he is not in a position forcefully to complain of his conviction of an offense of lesser degree.
Another point presented by the appellant is the excessiveness of the sentence of five years in the state penitentiary, but this is not a matter properly presentable on appeal. The sentence imposed is well within the range of the penalties fixed by the statutes for the offense found by the jury to have been committed, and this being true, this court will not interfere. Brown v. State, 152 Fla. 853, 13 So. 2d 458. In that case this principle was enunciated and the ruling in Nowling v. State, 151 Fla. 548, 10 So. 2d 130, was expressly overruled.
We have examined the other questions discussed in appellant's brief and find them without merit. The judgment is Affirmed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Dilar S. Booker v. State, 514 So. 2d 1079 (Fla. 1987)…not a judicial power, but a legislative power, controlled only by the provisions of the Constitution. Id. at 858, 13 So. 2d at 461 (quoting 15 Am.Jur. Criminal Law § 526 (1938). See also Stanford v. State, 110 So. 2d 1 (Fla.1959); Walker v. State, 44 So. 2d 814 (Fla. 1950); Infante v. State, 197 So. 2d 542 (Fla. 3d DCA 1967); Rohdin v. State, 105 So. 2d 371 (Fla. 2d DCA 1958). This view is also consistent with the United States Supreme Court’s treatment of this issue. In Gore v. United States, 357 U.S. 386…
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La Barbera v. State, 63 So. 2d 654 (Fla. 1953)…that the court would not disturb a sentence authorized by statute, leniency thereafter being available only by petition to the State Board of Pardons. Brown v. State, 152 Fla. 853, 13 So. 2d 458. This position was restated in Walker v. State, Fla., 44 So. 2d 814, where the effect of the decision of Brown v. State upon the decision in Nowling v. State was stressed. We now reaffirm the principle that if a trial judge imposes a sentence that is within the limits defined in the statute denouncing the offense,…
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Stanford v. State, 110 So. 2d 1 (Fla. 1959)…Later, in Brown v. State, 152 Fla. 853, 13 So. 2d 458, we appear to have receded from the doctrine of the Nowling case and held that the only remedy for an excessive sentence was by petition to [*4] the Pardon Board. See also Walker v. State, Fla., 44 So. 2d 814; La Barbera v. State, Fla., 63 So. 2d 654; Emmett v. State, Fla., 89 So. 2d 659; and Hutley v. State, Fla., 94 So. 2d 815, wherein the Brown case was affirmed. While the appeal here is not based on excessiveness of the sentence, I do not think that…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 152 Fla. 853 (Fla. 1943)
- Lassiter v. State, 98 Fla. 370 (Fla. 1929)
- Walker v. State, 44 So.2d 814 (Fla. 1950)
- Nowling v. State, 151 Fla. 584 (Fla. 1942)