THOMAS LOVETT, PETITIONER,
v.
H. G. COCHRAN, JR., DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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The Florida Supreme Court held that a life sentence imposed under the habitual offender statute was void because the information alleged that two of the prior convictions occurred on the same day, violating the requirement that each conviction must occur after the previous one. The court discharged the petitioner from the life sentence and remanded for resentencing as a second offender.
The information was ineffective as a foundation for a life sentence because the second and third convictions were alleged to have occurred on the same day. Under Florida law, to support a fourth offender conviction, each offense after the first must be committed subsequent to conviction for the preceding offense.
“to warrant conviction as a fourth offender it was imperative that the allegation of the information show and the proof demonstrate that the second crime was committed after the first conviction, and the third crime after the second conviction”
Establishes the core legal requirement that each prior offense must chronologically follow conviction for the preceding offense
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Join FLexlaw to unlock all legal intelligenceThomas Lovett was sentenced to life imprisonment on March 28, 1960, as a fourth felony offender based on four alleged prior convictions: Grand Larceny…
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A writ of habeas corpus was issued 00 the petition of Thomas Lovett and the case is now before us for further consideration upon the petition and the return of the respondent endorsed by the Attorney General.
It appears that the petitioner was sentenced 28 March 1960 in the Circuit Court of the Ninth Judicial Circuit, Seminole County, to life imprisonment for “Fourth Conviction Of Felony.” The sentence was-based on an information charging that on that day the petitioner had been convicted “of the following felonies in this State and other States, * * *; Grand Larceny in the First Degree on September 26, 1944, in Rochester, New York; Breaking and Entering on May 28, 1956, in Bradenton, Florida; Breaking and Entering on May 28,, 1956, in Bradenton, Florida; Breaking and Entering on March 28, 1960, in Sanford, Florida.”
It is important to note that the second and third convictions were alleged to have occurred on the same day in the same city.
*573The relevant section of the statutes dealing with the punishment for a fourth conviction of felony is numbered 775.10, Florida Statutes 1959, F.S.A. That law provides that a person who has three times been convicted of felonies, or attempts to commit them, in this state or of acts in other states which would constitute felonies if committed here, and then commits a felony in Florida, may, upon the fourth conviction in this State, be imprisoned for life.
Upon cursory examination of the information, it appears that the petitioner was charged with the commission of four felonies, the last of which was perpetrated in Florida, nonetheless the information was ineffective as a foundation for a life sentence because, as was observed at the outset, the second and third convictions were averred to have happened the same day.
We treated of this subject in Joyner v. State, 158 Fla. 806, 30 So.2d 304, and held that to warrant conviction as a fourth offender it was imperative that the allegation of the information show and the proof demonstrate that the second crime was committed after the first conviction, and the third crime after the second conviction.
We discussed the question further in Perry v. Mayo, Fla., 72 So.2d 382, and, as we said, “to end the confusion, once for all,” we were adhering to the rule “that in order to form a basis for sentence as a second or fourth offender, it must be established that the offenses after the primary one were in each case committed subsequent to conviction for the preceding offense * * We announced that the rule would be bent to the extent of inferring, if the period between each conviction, save the first, and the next conviction was longer than the sentence imposed, that each commission save the first, came after the preceding conviction and met the rule.
Obviously there could have been no compliance with this construction when the second and third offenses were charged to have been perpetrated the same day. See Harvey v. Mayo, Fla., 72 So.2d 385; Cohen v. Mayo, Fla., 77 So.2d 787.
We are impelled to discharge the petitioner from the present sentence and to remand him to the custody of the Circuit Court of the Ninth Judicial Circuit in Seminole County for prosecution as a second offender, upon a proper information, or for the imposition of a sentence for the violation alleged to have been committed 28 March 1960.
ROBERTS, C. J., and HOBSON, DREW and THORNAL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Barnes v. State, 576 So. 2d 758 (Fla. 1st DCA 1991)…relied on by the state to support application of the habitual offender statute occurred on the same date or were successive convictions, that is, based on convictions for offenses committed after a prior conviction, as required by Lovett v. Cochran, 137 So. 2d 572 (Fla.1962). “We issued a show cause order to appellee for clarification in this regard and it responded that it was unable to show cause why this case should not be reversed and remanded for reconsideration.” Id. at 431. The obvious import of this c…
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Shead v. State, 367 So. 2d 264 (Fla. 3d DCA 1979)…d the second offense subsequent to his conviction on the first offense. Two or more prior convictions rendered on the same day are, therefore, treated as one offense for purposes of such a provision in a habitual criminal statute. Lovett v. Cochran, 137 So. 2d 572 (Fla. 1962); Perry v. Mayo, 72 So. 2d 382 (Fla. 1954); Mayo v. State ex rel. Murray, 66 So. 2d 256 (Fla.1953); Reed v. Mayo, 61 So. 2d 757 (Fla.1952); Scott v. Mayo, 159 Fla. 816, 32 So. 2d 821 (1947); Joyner v. State, 158 Fla. 806, 30 So. 2d 304 (1…
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Taylor v. State, 558 So. 2d 1092 (Fla. 5th DCA 1990)…ida Supreme Court announced the rule that a second conviction relied upon by the State to sentence a defendant as an habitual offender must be subsequent to the defendant’s preceding conviction. This rule continues to be followed. Lovett v. Cochran, 137 So. 2d 572 (Fla.1962); Harvey v. Mayo, 72 So. 2d 385 (Fla.1954), cert. denied, 349 U.S. 965, 75 S.Ct. 898, 99 L.Ed. 1287 (1955); Perry v. Mayo, 72 So. 2d 382 (Fla.1954); Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984), quashed on other grounds, 476 So. 2d…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Joyner v. State, 158 Fla. 806 (Fla. 1947)
- Perry v. Mayo, 72 So. 2d 382 (Fla. 1954)
- Harvey v. Mayo, 72 So. 2d 385 (Fla. 1954)
- Cohen v. Mayo, 77 So. 2d 787 (Fla. 1955)