DAVID STALLWORTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Stallworth appealed his sentence, arguing that a 14-month delay between conviction and sentencing violated due process. The Florida appellate court agreed the delay was improper but upheld the sentence, requiring that it be corrected to run from the original conviction date rather than the later sentencing date.
While the court found the delayed sentencing procedure itself improper, it upheld the three-year sentence imposed within the five-year statutory limitation period. The sentence must be corrected so that it commences nunc pro tunc as of the original conviction date (May 23, 1968) rather than the later sentencing date (July 16, 1969).
[1] A sentence deferred from day to day and term to term is improper and illegal.
[2] An illegal sentence may be corrected by the trial court.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the delayed sentence was improper and the term of the sentence commenced to run, nunc pro tunc, as of the date of the original sentence”
Establishes the key principle that while delayed sentencing violates proper procedure, the court can correct it by making the sentence retroactive to the original conviction date.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceStallworth pleaded guilty to two counts: malicious destruction of property and inciting a riot. On May 23, 1968, the trial court adjudged him guilty a…
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This is an appeal from a sentence imposed by the Court of Record of Escambia County, Florida, rendered approximately fourteen months after adjudication' of guilty on a plea of guilty, sentences having been deferred by the court in open court “from day to day and term to term until further order of the court”.
The defendant was charged in a two-count information. The first count charged malicious destruction of property, and the second count charged inciting a riot.
The court sentenced the defendant to one year in County jail on the first count, giving him credit thereon for 45 days already served pending trial.
As to the second count, the court made some comment to the defendant about trying to get along at the County jail, and adding that if he couldn’t get along at “camp” or he gave “them any trouble out there”, he, the court, would impose sentence under second count to the state prison. The defendant served his first sentence at the county camp or jail, but on July 16, 1969, the defendant was brought back before the court and sentence imposed on the second count, to which defendant had plead guilty and on which the court had adjudged him guilty. The defendant was sentenced to three years af hard labor in the state prison.
The defendant, appellant in this cause, argues that he was denied due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution when he was sentenced from day to day and term to term and then sentenced to three years in the state penitentiary. The adjudication of guilty and the deferment of sentence was done on May 23, 1968. We do not agree with appellant’s contention in this respect, but we are bound, we feel, by the decision of this court as found in Bateh v. State, 101 So.2d 869 (Fla.App. 1st, 1958) as affirmed by our Supreme Court in State v. Bateh, 110 So.2d 7 (1959), wherein the court held that the delayed sentence was improper and the term of the sentence commenced to run, nunc pro tunc, as of the date of the original sentence.
The Third District Court of Appeal, in the case of Drayton v. State, 177 So.2d 250, held that the suspension of the sentence from day to day and term to term, was illegal, citing as authority the Bateh case, supra and Helton v. State, Fla., 106 So.2d 79. In the Drayton case, as in the Bateh case, it was held the trial court could correct an illegal sentence.1 Section 775.14, Florida Statutes, F.S.A., places a limitation of 5 years within which to alter a sentence.
*330In the case sub judice, the sentence complained of was illegal by reason of the day to day and term to term suspension, but was imposed within the 5 year limitation imposed by F.S. § 775.14, F.S.A., and therefore subject to correction. However, pursuant to the Bateh case, the sentence of three years imposed on July 16, 1969, must be corrected by the trial court to render the commencement of said sentence, nunc pro tunc, as of May 23, 1968, and the trial court does have the authority to correct the sentence imposed.
For these reasons, this cause is remanded to the trial court with directions to enter an appropriate order in conformance with this opinion.
Remanded with directions.
RAWLS and SPECTOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shieder v. State, 430 So. 2d 537 (Fla. 5th DCA 1983)…etains jurisdiction to impose a lawful sen-fence. A lawful sentence, when imposed, may not exceed the period of maximum punishment computed from the date guilt was adjudicated. Smith v. State, 259 So. 2d 498 (Fla. 1st DCA 1972); Stallworth v. State, 237 So. 2d 328 (Fla. 1st DCA 1970), quashed, 251 So. 2d 847 (Fla.1970); Coleman v. State, 205 So. 2d 5 (Fla. 3d DCA 1967); Hunter v. State, 200 So. 2d 577 (Fla. 3d DCA 1967) cert. dismd., 204 So. 2d 212 (Fla.1967); Drayton v. State, 177 So. 2d 250 (Fla. 3d DCA 196…
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State v. Stallworth, 251 So. 2d 847 (Fla. 1970)…On Petition for Rehearing BOYD, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 237 So. 2d 328. The basis of this Court’s jurisdiction is conflict between the decision sought to be reviewed and Rodriguez v. State.1 Respondent, defendant below, was charged in a two-count Information with malicious destruction of property and inciting a riot.…
Authorities Cited
- State v. Mussa C. Bateh, 110 So. 2d 7 (Fla. 1959)
- Mussa C. Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958)
- Helton v. State, 106 So. 2d 79 (Fla. 1958)
- Food Fair Stores S. Dade, Inc. v. Gregory, 177 So. 2d 250 (Fla. 3d DCA 1965)