CHARLIE WILL JERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charlie Will Jerry appeals the denial of relief under Criminal Procedure Rule No. 1 after pleading guilty to breaking and entering charges and receiving concurrent sentences in 1961, then being convicted and sentenced again in 1963. The court initially affirmed the denial but reconsidered after the controlling precedent changed in Jones v. State, ultimately granting the appeal and requiring a hearing on the merits of Jerry's claim that he lacked counsel and was not advised of his rights.
The court held that a person serving one sentence who is moving to vacate a sentence which commences in the future is actually in custody under both sentences under Criminal Procedure Rule No. 1, and thus has standing to petition for relief. The court reversed its initial affirmance and required the trial court to grant a hearing on Jerry's petition alleging lack of counsel and failure to advise him of his rights.
“a person who is serving one sentence and is now moving to vacate a sentence which commences in the future is actually in custody under both sentences in contemplation of Criminal Procedure Rule No. 1”
Establishes the key holding that Jerry had standing to petition for relief despite serving only one sentence at the time of the petition, because he faced a future sentence under the same rule.
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Join FLexlaw to unlock all legal intelligenceJerry pleaded guilty to two charges of breaking and entering with intent to commit a felony in Pinellas County Circuit Court and was sentenced on Augu…
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This is an appeal by the defendant Charlie Will Jerry from an order denying relief without hearing under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
The defendant pleaded guilty on two charges of breaking and entering with intent to commit a felony in the Circuit Court of Pinellas County. He was sentenced on August 17, 1961 to serve terms of six months to five years on each charge, to run concurrently. The defendant was paroled, and was again convicted in Pinellas County of breaking and entering and sentenced on August 1, 1963 to serve two terms of six months to five years, also to run concurrently. He is now serving the sentence on the judgments of August 1, 1963, and will begin to serve the sentence for the terms imposed on August 17, 1961 when his present sentences terminate.
*773The trial court denied relief on authority of numerous cases decided by this court, including White v. State, Fla.App.1964, 165 So.2d 799. This court, in following said cases, per curiam affirmed the trial court by opinion filed on March 12, 1965. The defendant, in proper person, filed motion for rehearing on April 8, 1965, which must be stricken as not having been timely filed under Florida Appellate Rule 3.14, 31 F.S.A. The mandate of affirmance was entered on April 2, 1965.
On March 31, 1965 this court in the case of Jones v. State, Fla.App.1965, 174 So.2d 452, receded from its holding in White v. State, supra, and cases holding similarly for the reason that a person who is serving one sentence and is now moving to vacate a sentence which commences in the future is actually in custody under both sentences in contemplation of Criminal Procedure Rule No. 1.
In order to conform the rulings of the court in this case to the recent decision in Jones v. State, supra, it is necessary that the mandate he recalled and set aside; a rehearing he granted by this court, sua sponte, and its per curiam affirmance recalled; the record reviewed and such opinion rendered as may be proper under the circumstances.
The mandate of this court during the term in which entered may be vacated, corrected and changed. Trustees of Internal Improvement Fund v. Bailey (1864), 10 Fla. 238; Larramore v. State (1933), 111 Fla. 755, 150 So. 732. This court is now in its January 1965 term, which does not expire until July 12, 1965. Accordingly, we hold that this court retains the right to recall and vacate a mandate for good cause until the end of the term in which said mandate was issued.
The petition of the defendant for relief under C.P.R. No. 1 alleges he was indigent; he was not able to employ counsel at his trial, and was not advised of his rights to counsel. The record on appeal does not show that he was represented by counsel.
Accordingly, the petition for rehearing is stricken; a rehearing sua sponte by this court is granted; the mandate issued on April 2, 1965 is recalled and vacated; the cause is considered on rehearing; and the case reversed with directions that the defendant be granted a hearing on his motion for relief under C.P.R. No. 1 as to the sentence imposed August 17, 1961.
ALLEN, Acting C. J., and WHITE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Vaughn R. Simpson v. State, 505 So. 2d 1378 (Fla. 1st DCA 1987)…during which the mandate was issued. State Farm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, 405 So. 2d 980 (Fla.1981); United Faculty of Florida v. Board of Regents, 423 So. 2d 429 (Fla. 1st DCA 1982); Jerry v. State, 174 So. 2d 772 (Fla. 2d DCA 1965). The court is now in the same term which commenced on the second Tuesday in January 1987, and that term does not expire until July. § 35.10, Fla.Stat. (1985). Accordingly, we have the power to recall the mandate issued February 26…1 / 2
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Owens v. State, 444 So. 2d 951 (Fla. 2d DCA 1984)…arm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, Fifth District, 405 So. 2d 980 (Fla.1981), and United Faculty of Florida v. Board of Regents, State University System, 423 So. 2d 429 (Fla. 1st DCA 1982); Jerry v. State, 174 So. 2d 772 (Fla. 2d DCA 1965). Here, the applicable term commenced July 1, 1983, and concluded December 31, 1983. Thus, withdrawal of the Owens mandate was proper. Concerning the merits of the state’s motion, we direct our discussion to the instant case and t…
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Westberry v. Copeland Sausage Co., 397 So. 2d 1018 (Fla. 1st DCA 1981)…ston, 145 Fla. 188, 198 So. 753 (1940), a case which extended and widened the domain of municipal liability. The court reconsidered the Barth case based on the law announced in City of Tampa v. Easton. A similar situation occurred in Jerry v. State, 174 So. 2d 772 (Fla. 2nd DCA 1965). In that case also the court recalled its mandate in order to conform the ruling in Jerry to a recent decision of the court in Jones v. State, 174 So. 2d 452 (Fla. 2nd DCA 1965). The court held that it retained the right to recal…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Trs. Internal Improvement Fund v. Bailey, 10 Fla. 238 (Fla. 1864)
- Jones v. State, 174 So. 2d 452 (Fla. 2d DCA 1965)
- White v. State, 165 So. 2d 799 (Fla. 2d DCA 1964)
- Larramore v. State, 111 Fla. 755 (Fla. 1933)