J. L. SMITH

v.

B. A. BROWN, SHERIFF, HIS DEPUTIES AND AGENTS

Buford, J.

This is a habeas corpus proceeding in which this court exercises original jurisdiction.

By the petition it is made to appear that at a regular term of the Circuit Court of St. Lucie County on November 27, 1937, the petitioner was adjudged guilty of the larceny of an automobile and sentenced by the trial, judge to serve six months in the county jail, subject to the orders of the County Commissioners, that during the same term *831of the court, on December' 3, 1937, the sentence was revoked and annulled and the petitioner was temporarily discharged ; that at a regular term of the- court on the 8th day of November, 1938, the petitioner was again brought into the Circuit Court of St. Lucie County and sentenced to-serve a period of two years in the State prison under the conviction above referred to.

It is contended that because the petitioner had begun to serve the sentence first imposed upon him the court was without authority or power to vacate and revoke the sentence, even at the same term of the court, and that because of the lack of power and jurisdiction to revoke such sentence the sentence imposed at a later date, November 8, 1938, was without force and effect.

Petitioner relies on the opinion and judgment' in the case of Tillman v. State, 58 Fla. 113, 50 Sou. 675, 138 Am. St. Rep. 100, in which it was said:

“This Court has decided that the right of a defendant-to make a motion for a new trial, within the time provided' by law, is not forfeited by the fact that sentence had been passed upon the defendant prior to his making such motion. Massey v. State, 50 Fla. 109, 39 South. Rep. 790. So, too, during the same term of court at which the sentence' is imposed, before the .defendant has begun serving such sentence, the trial judge has the power to modify such sentence. In this' case it does not affirmatively appear thatsuch defendant had begun serving her sentence.”—and on the enunciation found in 8 R. C. L., page 244, Sec. 247, in-which it is said:

“247. Amendment after Complete or Partial Execution.—Where a judgment has been fully satisfied by the defendant, the trial court has no power to amend it by increasing the punishment after the term, at which the judgment was rendered, or even • during the same term. The *832ends of justice will not be served by permitting the state,after the sentence of the law has been discharged, to open the case for any purpose and least of all to insert an addi-> tional penalty. To permit this would be like punishing the-delinquent the second time for the same offense. Thus it' has been held that where a court has imposed a fine and' imprisonment when the statute confers power only to punish by fine or imprisonment, and the fine has been paid, the court cannot, even during the same term, modify the judgment by imposing imprisonment instead of the former-sentence, and, the judgment having been executed so as to be a full satsifaction of one of the alternative penalties of the law, the power of the court as to that offense is at an end. The rule seems to be well established that the trial court is without power to set aside a criminal judgment after it has been partly satisfied by the defendant, and impose a new or different judgment increasing the punishment, even at the same term of court at which the original judgment was imposed. And of course a judgment which has been partly satisfied by the defendant cannot be set aside by the trial court and a new judgment increasing the punishment-imposed, after the term of court at which the first judgment was rendered.

In support of the text the author cites State v. Meyer, 86 Kans. 793, 122 Pac. 101, 40 L. R. A. 90, in which it was held:

“The court found the defendant guilty of contempt and entered judgment that he be committed to the jail of the county for three months and pay a fine of $100. After he had been imprisoned under this judgment for twelve hours, he was recalled, and the court attempted to render a second or modified judgment sentencing the defendant to six months imprisonment and the payment of a fine of $100. Held, that as the first sentence was one the court had au*833thority to impose, and that as the defendant had suffered punishment under it, there was then no authority in the court to change and increase the punishment; and- further held, that the first judgment is valid and still enforceable.”

The' weight of authority appears to support these enunciations but in none of these cases does it appear that the action of the trial court in attempting to set aside and revoke the sentence at the same term of the court was taken on the application of the defendant. The record in the instant case shows that immediately after the defendant was sentenced he developed pneumonia and that his physician represented to the trial court that the defendant “is suffering from pneumonia and that his removal from said county jail is necessary in order to save the defendant’s life,” and upon this representation the trial court acted.

While the representation may have been informally made, nevertheless, it was sufficient to advise the trial court of the serious condition of the defendant and of the necessity of taking action in behalf of the defendant.

It, therefore, follows that the attending physician’s representations to the court must be deemed equivalent to a representation by the defendant and a motion on his part to vacate the sentence and release him from custody, pending his treatment for pneumonia.

Under these conditions, we hold that the case is not controlled by the general rule hereinbefore stated, but is an exception to that rule and falls within the rule stated by us in the case of State, ex rel. Rhoden, v. Chapman, 127 Fla. 9, 172 Sou. 56, in which we held:

“It is beyond the power of a court of criminal jurisdiction, after the adjournment of the term of court at which a sentence to imprisonment is imposed upon one adjudged guilty of felony, to set aside, vacate or annul it or to change it in any substantial respect to defendant’s prejudice, ab*834 sent'the defendant’s consent, unless it is done pursuant top appropriate proceedings for resentence. People v. Sullivan, 54 Misc. 489; 106 N. Y. S. 143.

“But where at the request of a convicted defendant, or at his instance or approval given during the same term at which 'a criminal sentence is imposed, the court has vacated or annulled its presently imposed sentence, and deferred the proposition of imposing a néw sentence to a subsequent term of court, to which the casé is continued pending which’ continuance the defendant is released on bond, the court may', at such subsequent term, impose a new sentence upon the original judgment of conviction, even though such new sentence is greater, or materially different in effect from that first imposed and thereafter vacated. See Preston v. State, 117 Fla. 618, 158 Sou. Rep. 135; Ingram v. Prescott, 111 Fla. 320, 149 Sou. Rep. 369; Lovett v. State, 29 Fla. 384, 11 Sou. Rep. 176.”

' So it is, it appearing that the sentence under which the petitioner is now serving is not void, it will not be held invalid on collateral attack in habeas corpus proceedings.

For the reasons stated, the petitioner is remanded to the • custody of the Respondent.

So ordered.

Terrell, C. J., and Whitfield, Brown and Chapman, J; J., concur.