MAY
v.
BERRY, CHIEF OF POLICE
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The court held that sentencing an insolvent person to incarceration for failure to pay a fine violates the Equal Protection Clause.
Petitioner pleaded guilty to petty larceny and was sentenced to a fine or eleven days incarceration in lieu of payment. Petitioner was insolvent and u…
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This cause came on before this court to be heard on the petition of the petitioner for writ of habeas corpus, and counsel for the petitioner and respondent having stipulated that the petitioner is an insolvent and poverty-stricken person, that she pleaded guilty to a charge of petty larceny before the municipal court of the city *170of Hialeah on May 28, 1971 and, after testimony was offered as to her indigency, she was sentenced to pay a fine of $100 plus $22 court costs, or in lieu of payment to be incarcerated for eleven days, and this court being of the opinion that the aforementioned sentence is a denial to the petitioner of equal protection as required by the fourteenth amendment to the United States Constitution, Tate v. Short, _U.S.__, 28 L.Ed.2d 130, 91 Sup.Ct. 668 (1971), it is ordered and adjudged as follows —
1. That this cause is remanded to the Hialeah Municipal Court for sentencing consistent with the decision in Tate v. Short, supra.
2. That the order releasing the petitioner upon her own recognizance which this court granted on May 28, 1971 is continued until such time as the Hialeah Municipal Court shall re-sentence the petitioner pursuant to paragraph 1 of this order.
3. That this court retains jurisdiction of this cause.