GEORGE L. TUBB
v.
NATHAN MAYO, AS CUSTODIAN OF THE STATE PRISON
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Petitioner challenged his conviction for breaking and entering with intent to commit felony larceny, arguing the conviction was void because the trial court imposed a sentence for a non-existent crime ("breaking and entering and petit larceny"). The Florida Supreme Court held that while the judgment was defectively worded, the information adequately charged a valid offense, and habeas corpus is not the appropriate remedy for such technical pleading defects.
The court held that the conviction is not void as to the substantive charges because the first count properly alleged the offense of breaking and entering with intent to commit a felony, which is a valid crime under Florida law. However, the court remanded the case for the trial court to impose a legally proper judgment and sentence, as the defective wording of the judgment must be corrected. Habeas corpus is not the proper remedy for technical pleading defects; it is limited to cases where the offense charged does not constitute a crime under law or when there is a total failure to allege any crime.
“There is no such crime known to the laws of Florida. There is a crime which may be designated "breaking and entering with intent to commit a felony" or "breaking and entering with intent to commit a misdemeanor," both of which are felonies, and another crime known as "petit larceny."”
Establishes that the trial court's judgment referenced a non-existent crime combining breaking and entering with petit larceny.
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Join FLexlaw to unlock all legal intelligenceGeorge L. Tubb was convicted on December 9, 1933, in Orange County Criminal Court on two counts: breaking and entering a filling station with intent t…
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This is an original proceeding in habeas corpus.
Petitioner was convicted in the Criminal Court of Record of Orange,- County, Florida, on the 9th day of December, 1933, under the first and second counts of an information, which counts were as follows:
“That William Moorehead, George L. Tubb, Horace Hurst and Minnie Foster of the County of Orange and State of Florida on the 10th day of September in the year of our Lord one thousand nine hundred and thirty-three in the County and State aforesaid, did unlawfully break and enter a certain building, to-wit: a filling station, the property of W. F. Connell with intent to commit a felony, to-wit : grand larceny.
“And your informant aforesaid, prosecuting for the State of Florida, in the County of- Orange, under oath, further information makes that William Moorehead, George L. Tubb, Horace Hurst and Minnie Foster of the County and State aforesaid on the 10th day of September, 1933, in the County and State aforesaid two automobile tires of the value of $30.00, 6 automobile inner tubes of the value of $12.00, 2 padlocks of the value of $2.00, $1.10 good and lawful money of the United States of America of the value of $1.10 all of the total value of $45.10 of the property, goods and chattels of W. F. Connell did unlawfully steal, take and carry away.”
It is contended that the conviction is void because the first-count of the information charges no offense under the laws of Florida and the defendant could not be sentenced to a period of imprisonment in the State Prison under the second count. The latter contention is entirely correct, but would be immaterial were it not for the fact that the record shows that the Court adjudged the defendant guilty of the crime *192of “breaking and entering and petit larceny.” There is no such crime known to the laws of Florida. There is a crime which may be designated “breaking and entering with intent to commit a felony” or “breaking and entering with intent to commit a misdemeanor,” both of which are felonies, and another crime known as “petit larceny.”
If he was convicted under the first count of the information the defendant in this case was found guilty by' the jury of breaking and entering a certain building, the property of W. F. Connell, with intent to commit a felony, to-wit: grand larceny, which offense was charged in the-first count of the information and, if he was found guilty under the second count of the information he was convicted of petit larceny. If he was found guilty under both of these counts of the information he was convicted of both offenses.
In any event, the judgment and sentence as imposed is not supported by the law or the record.
The offense is charged in the first count in the language of the statute and, therefore, does not entirely fail to charge the offense. The information was defective and should have been quashed or supplemented with a bill of particulars on timely motion.
Writ of habeas corpus cannot be used as a substitute for motion to quash or a writ of error. Moneyhan v. Bowles, 72 Fla. 259, 72 Sou. 931. In Jackson v. State, 71 Fla. 342, 71 Sou. 332, we held:
“The right to attack an information by the writ of habeas corpus is more limited than is permitted in motions to quash and in arrest, and may avail only when the offense charged does not constitute a crime under the laws of the State, by reason of the unconstitutionality of the statute invoked or when there is a total failure to allege a crime under any statute; inartificiality in pleading will not avail.”
*193“Upon habeas corpus an information will be upheld as charging malpractice in' office, when it alleges that a county-commissioner received a money consideration for purchasing certain property for the county, even though the information fails to state that it was corruptly done.”
Motion to quash the return is denied and the petitioner is remanded to the custody of the Respondent, with directions that he be delivered forthwith to the Sheriff of Orange County, Florida, by him to be presented' at the bar of the Criminal Court of Record of Orange County at its next regular or special Term, there to receive such judgment and sentence as may be lawfully imposed upon him under the record.
It is so ordered.
Ellis, C. J., and Terrell, J., concur.
Whitfield, P. J., and Brown and Davis, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. State, 152 Fla. 853 (Fla. 1943)…plied. It is, therefore, observed that the Information is substantially in the language of the statute. See Lake v. State, 100 Fla. 390, 129 So. 832; Sallas v. State, 98 Fla. 464, 124 So. 27; Finch v. State, 116 Fla. 437, 156 So. 489; Tubb v. Mayo, 128 Fla. 190,174 So. 325. Appellant through his counsel, has stated several questions but only argues the 1st and 2nd questions and thereby waives all others. The 1st question is: [*856] 1. “Was the information insufficient, in that it did not allege that the t…
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State v. Bruno, 107 So. 2d 9 (Fla. 1958)…he statute it is sufficient. The following cases cited by the State uphold its position. State v. Pound, Fla.1950, 49 So. 2d 521 (see also State v. Clein, Fla.1957, 93 So. 2d 876); State v. Andres, 1941, 148 Fla. 742, 5 So. 2d 7; Tubb v. Mayo, 1937, 128 Fla. 190, 174 So. 325 [information charged offense in the language of the statute and therefore did not “entirely fail” to charge the offense]; Dyess v. State, 1933, 113 Fla. 417, 151 So. 708 and Sallas v. State, 1929, 98 Fla. 464, 124 So. 27. However, the d…
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Aldine Taylor v. State, 138 Fla. 762 (Fla. 1939)…putting such person in fear of death or great bodily harm after having so feloniously entered such building, and may be convicted of both offenses under separate counts in the same information or [*767] under two separate informations. Tubb v. Mayo, 128 Fla. 190, 174 Sou. 325. So demurrer to the plea was properly sustained. The contentions presented under the second and third questions are without merit because when a defendant takes the stand as a witness in his own behalf he assumes the same status with…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 71 Fla. 342 (Fla. 1916)
- Mooneyham v. Bowles, 72 Fla. 259 (Fla. 1916)