PENSACOLA LODGE NO. 497, BENEVOLENT AND PROTECTIVE ORDER OF ELKS, A CORPORATION, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court dismissed a writ of error in a prosecution case because the trial court's judgment was insufficient to support appellate review. The judgment failed to properly adjudicate conviction and impose a lawful sentence as required by statute, rendering it defective as a basis for error.
The judgment was insufficient to support a writ of error because it failed to adjudicate conviction and impose a lawful sentence as required by statute. The trial court lacked authority to suspend execution of a fine without a prior lawful judgment of conviction and sentence.
“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.”
Establishes that while nolo contendere does not require explicit guilt finding, the court must still adjudge conviction and impose the statutory penalty.
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Join FLexlaw to unlock all legal intelligenceThe Pensacola Lodge No. 497, Benevolent and Protective Order of Elks, was prosecuted for violation of Chapter 7287 Laws of 1917. The defendant entered…
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Whitfield, J.
In a prosecution for violation of Chapter 7287 Laws of 1917, the following “judgment upon the defendant” was rendered: “This cause coming on this day to be heard, and the defendant being represented by its attorneys, present in court and having entered a plea of nolo contendere to the charge contained in the information, it is considered by the Court that the defendant do forfeit and pay to the State of Florida the sum of $100.00, together with the costs of this, prosecution, here and now taxed at $ ; which said fine is suspended upon condition that the defendant comply with the law in the future.” A writ of error was taken by the defendant below and various contentions on the merits are made, but as the judgment is insufficient as a basis for the writ of error, the writ must be dismissed.
Section 936 of the General Statutes of 1906, provides: “All fines imposed under the penal laws of this State, and the proceeds of all forfeited bail, bonds or recog nizances, shall be paid into the fine and forfeiture fund of the county in which the indictment was found or the prosecution commenced, and judgment must be entered therefor in favor of the State for the use of the particular county.” Sec. 9 Art. XVI Constitution as amended in 1894.
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 fro mthe 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. 19 Ency. Pl. & Pr. 437; Commonwealth v. Ingersoll, 145 Mass. 381, 14 N. E. Rep. 449; Commonwealth v. Mahoney, 115 Mass. 151. Conviction includes a judgment as well as a plea or verdict of guilt. O’Brien v. State, 55 Fla. 146; 24 Fla. 153.
The right of a trial court to suspend sentence is recognized, but it has no power to suspend the execution of a sentence already lawfully imposed, except for the purpose of giving effect to an appeal, or where cumulative sentences are imposed, and in some cases of necessity or emergency. Tanner v. Wiggins, 54 Fla. 203, 45 South. Rep. 459, 14 Ann. Cas. 718; Ragland v. State, 55 Fla. 157, 46 South. Rep. 724; Ex parte United States, 242 U. S. 27, — Sup. Ct. Rep. —; State v. Abbott, 87 S. C. 466, 70 S. E. Rep. 6, 33 L. R. A. (N. S.) 112; Fuller v. State, 100 Miss. 811, 57 South. Rep. 806, 31 Ann. Cas. 98; Fuller _v. State,— Miss.—, 57 South. Rep. 6, 39 L. R. A. (N. S.) 242.
The purported judgment in this case states that the defendant having entered a plea of nolo contendere to tlie charge contained in the information, “it is considered by the court that the defendant do forfeit and pay to the State of Florida the. sum of $100.00” &c. There is no adjudication of conviction and no sentence other than “that the defendant do forfeit and pay.” Under the statute above quoted a judgment must be entered for the fine “in favor of the State for the use of the * * * county.” The order by which “said fine is suspended” is a mere irrelevancy, whether the supposed judgment is effective or not.
The judgment is not an adjudication of conviction and imposition of fine and judgment therefor as the statute requires. There, is consequently no sufficient judgment to support a writ of error, and the writ of error issued herein is dismissed.
Browne, C. J., and Taylor and Ellis, J. J., and Wills, Circuit Judge, Concur. West, J., disqualified.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Ellis v. State, 100 Fla. 27 (Fla. 1930)…me includes a judgment of the court as well as a plea or verdict of guilty. Smith v. State, 75 Fla. 468, 78 So. R. 530; Johnson v. State, 81 Fla. 783, 89 So. R. 114; Harris v. State, 75 Fla. 527, 78 So. R. 526; Pensacola [*30] Lodge, etc., v. State, 74 Fla. 498, 77 So. R. 613; 86 So. R. 506; Gordon v. State, 86 Fla. 255, 97 So. R. 428; Kauz v. State, 124 So. R. 177. See also State v. Barnes, 24 Fla. 153, 4 So. R. 560; Demens v. Poyntz, 25 Fla. 654, 6 So. R. 261. While there might be some ground for relaxin…1 / 2
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Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963)…nstant case. Before we survey the decisions of other jurisdictions for the historical development of the plea of nolo contendere, we will discuss the three Florida cases in which the plea was used. In Pensacola Lodge No. 497, B. P. O. E. v. State, 74 Fla. 498, 77 So. 613, it was stated: “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…1 / 2
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State v. Frederick, 124 Fla. 290 (Fla. 1936)…highest degree of capability. An appeal will not lie until a judgment of conviction is duly entered in a criminal case, even though it be purely a “test” proceeding and involves no actual culpability. Pensacola Lodge No. 497, B. P. O. E. v. State, 74 Fla. 498, 77 Sou. Rep. 613. No sound reason is suggested why a person charged with a criminal offense before a Justice of the Peace Court must first suffer a possibly farcical trial in the inferior tribunal, with attendant expense to the county, when, by res…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ex parte United States, 242 U.S. 27 (U.S. 1916)
- Chas. A. Ragland v. State, 55 Fla. 157 (Fla. 1908)
- State ex rel. A. W. Owens v. Barnes, 24 Fla. 153 (Fla. 1888)
- Tanner v. Wiggins, 54 Fla. 203 (Fla. 1907)
- O'Brien v. State, 55 Fla. 146 (Fla. 1908)