RICHARD W. WESTBERRY, PETITIONER,
v.
H. G. COCHRAN, JR., DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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The Florida Supreme Court remanded a prisoner to the trial court for resentencing because the prisoner was not present when the second sentence was imposed after the original sentence was vacated. The court held that the prisoner's presence was required for the valid imposition of a sentence.
No, the sentence was not validly imposed because the petitioner was not present in court when it was passed. The statute requires the defendant to be present for the imposition of a sentence.
“the original sentence imposed on the petitioner was vacated 20 May 1959 and that on the same day, evidently in accordance with the ruling of the District Court of Appeal, Second District, State ex rel. Westberry v. Mayo, Fla.App., 112 So. 2d 916, the trial court entered a sentence for a period within the limitations of the statute, for the identical offense, but that at the time of the entry of this sentence, the petitioner was not present in court”
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Join FLexlaw to unlock all legal intelligenceThe petitioner's original sentence was vacated. On the same day, the trial court entered a new sentence for the same offense. However, the petitioner …
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It appearing to the court upon the return of the respondent that the original sentence imposed on the petitioner was vacated 20 May 1959 and that on the same day, evidently in accordance with the ruling of the District Court of Appeal, Second District, State ex rel. Westberry v. Mayo, Fla.App., 112 So.2d 916, the trial court entered a sentence for a period within the limitations of the statute, for the identical offense, but that at the time of the entry of this sentence, the petitioner was not present in court;
And the court being of the opinion that the passage of the sentence did not therefore accord with the requirements of the statute, Section 921.07, Florida Statutes 1955, and F.S.A.;
It is, therefore, the order of this court that the petitioner be remanded to the custody of the respondent with the direction that the respondent cause the petitioner to be taken again before the trial court for the imposition of a sentence for the offense of which the petitioner has been adjudged guilty.
THOMAS, C. J., and ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Neering v. State, 164 So. 2d 29 (Fla. 1st DCA 1964)…th his manifold obligations to the public, to the [*32] courts, and to the proper administration of criminal justice under law. • Both parties to this appeal cite in their briefs the decision of the Supreme Court of Florida in Westberry v. Cochran, 118 So. 2d 194 (1960). In that case the original sentence imposed on the petitioner for a writ of habeas corpus was vacated on a certain date in 1959 and on the same day, evidently in accordance with the ruling of the District Court of Appeal for Second District,…
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Wellington v. State, 226 So. 2d 432 (Fla. 2d DCA 1969)…ping with his manifold obligations to the public, to the courts, and to the proper administration of criminal justice under law. “Both parties to this appeal cite in their briefs the decision of the Supreme Court of Florida in Westberry v. Cochran, 118 So. 2d 194 (1960). In that case the original sentence imposed on the petitioner for a writ of habeas corpus was vacated on a certain date in 1959 and on the same day, evidently in accordance with the ruling of the District Court of Appeal for Second District,…
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Harris v. State, 789 So. 2d 1114 (Fla. 1st DCA 2001)…d by our criminal rules.”); Papageorge v. State, 710 So. 2d 53, 54-55 (Fla. 4th DCA 1998). Since Mr. Harris sought relief from detention not authorized by a sentence, his petition for writ of habeas corpus was appropriate. See Westberry v. Cochran, 118 So. 2d 194, 195 (Fla.1960) (reversing denial of habeas petition because “at the time of the entry of this sentence, the petitioner was not present in court,” and remanding with directions that the petitioner “be taken again before the trial court for the impos…
Authorities Cited
- Fornoff v. Shaver, 112 So. 2d 916 (Fla. 2d DCA 1959)
- State of Fla. ex rel. Richard Wayne Westberry v. Mayo, 112 So. 2d 916 (Fla. 2d DCA 1959)