JOHN SWILLEY, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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This case concerns whether a defendant's statement about a friend potentially paying costs affects their insolvency for the purpose of appealing a conviction. The court held that the defendant's ability to pay, not a friend's potential willingness, determines insolvency.
Yes, the Circuit Judge erred. A defendant's insolvency is determined by their personal financial ability to pay or secure costs, not by the potential willingness or ability of a friend to pay for them.
“that he thought he could get a friend to pay the costs for him”
The plaintiff in error's statement that formed the basis for the lower court's denial of insolvency.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff in error, convicted of larceny, sought to be declared insolvent to avoid paying trial and appeal costs. He stated he had no property and…
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Taylor, J.
This canse comes on for hearing on the plaintiff in error’s motion for an order remanding him to the custody of the Sheriff of Hamilton County from the custody of the officials of the penitentiary pending his writ of error from this court to review a judgment of conviction for larceny in the Circuit Court of Hamilton County. It appears that in his application to the Circuit Judge for an order adjudging him to be insolvent for the purpose of relieving himself of the payment of the costs of his trial and of his writ of error from this court, the plaintiff in error after showing that he was utterly insolvent and unable to pay the costs of the trial or of the appellate proceedings either in whole or in part, and that he had no property or means of any sort, and that he had not divested himself of any property for the purpose of obtaining the benefit of his oath of insolvency, on being questioned by the judge made answer: “that he thought he could get a friend to pay the costs for him,” whereupon the Circuit Judge solely on said quoted answer by the plaintiff in error adjudged him to be not insolvent and refused to supersede the sentence, and the plaintiff in error was thereupon turned over to the penitentiary officials.
The Circuit Judge erred in withholding his order adjudging the plaintiff in error to be insolvent solely on the quoted answer of the plaintiff in error to the effect “that he thought he could get a friend to pay said costs for him.” The question in such inquiries is not what the prisoner’s supposed friends have the ability to do in paying said costs, or their readiness or willingness to pay them, but has the defendant himself personally the financial or property ability to pay them or secure their payment. It is, therefore, ordered, that the plaintiff in error be remanded to the custody of the Sheriff of Hamilton County from the custody of the officials of the penitentiary pending said writ of error, and that the Circuit Judge make the order of insolvency applied for. Browne, C. J., and Whitfield,, Ellis and West, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Keur v. State, 160 So. 2d 546 (Fla. 2d DCA 1963)…, 9 L.Ed.2d 799 (1962). . Reference is here made to the statements immediately following the words “it occurring to the court”. . See, for example, State ex rel. Cheney v. Rowe, 1943, 152 Fla. 316, 11 So. 2d 585. . Accord: Swilley v. State, 1918, 76 Fla. 173, 79 So. 715; Loy v. State, Fla.1954, 74 So. 2d 650; Lawrence v. State, Fla.1954, 76 So. 2d 271; Gaston v. State, Fla.App.1958, 106 So. 2d 622. . Chapter 63-409, Laws of Florida 1963, F.S.A. § 27.50 et seq. Accord: Rolle v. State, 1934, 115 Fla. 64,…
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Rast v. State, 77 Fla. 225 (Fla. 1919)…the custody of the Sheriff of Duval County by the officers of the State 'prison and that he be permitted to give bail, if he can, to secure his personal appearance to abide the result of his writ of error proceedings in this court. Swilley v. State, 76 Fla. 173, 79 South. Rep. 715. Browne, C. J., and Whitefield, Ellis and West, J. J., concur.…
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In the Interest of L. G. T., 216 So. 2d 54 (Fla. 4th DCA 1968)…as to whether a juvenile, completely destitute in his own right, may be denied the benefit of the insolvency statute on the basis of the ability of his parents to bear the cost incident to appeal. Beginning with Swilley v. State, 1918, 76 Fla. 173, 79 So. 715 and followed in a long line of cases5 since that time, our courts have consistently held that the question in inquiries as to insolvency under this statute is whether the defendant personally has the means to pay the costs incident to the appeal, an…1 / 2
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