JOHNNY ALBURY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Affirmed. See Miles v. State, Fla.App.1968, 214 So.2d 101.
PIERCE, C. J., and HOBSON, J., concur.
MANN, J., dissents with opinion.
(dissenting).
Miles v. State, Fla.App.1968, 214 So.2d 101, is precisely in point, holding that an indigent appellant is not entitled to credit for time spent in jail awaiting trial although he was given the maximum sentence allowed for the offense. That decision was based simply on Fla.Stat. § 921.-161(1) (1969), F.S.A., which makes the allowance of credit discretionary.
That was before Williams v. Illinois, 1970, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed. 2d 586. I would overrule Miles in the light of Williams. That case held that the Constitution forbids holding an indigent for longer than the maximum term permissible for the substantive offense if he is unable to pay a fine. Mr. Chief Justice Burger spoke there for a unanimous court, and if the analogy to this case is not near perfect I cannot understand why:
“We conclude that when the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination which rests on ability to pay, * * *”
“ * * * we conclude that an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense.”
“ * * * We hold only that a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. * * *”
“ * * * We hold only that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.” (90 S.Ct. 2022, 2023)
Albury’s status differs from that of Williams only in that Albury’s additional imprisonment resulted from his inability to make bail. I think this case is clearly within the spirit of the Supreme Court’s ruling in Williams.
Further, I think that Miles was wrongly decided. It was certainly poorly briefed, *143because none of the many cases1 in which our Supreme Court has indicated that one sentenced after a second trial is entitled to consideration of time served under a prior void sentence was brought to this court’s attention. If time served under a void sentence should be considered, it seems that time served in jail under no sentence at all should likewise be taken into account. Certainly this is true where the aggregate confinement exceeds the maximum allowed by law as punishment for the offense.
I respectfully dissent.
MANN, Judge
(dissenting).
Miles v. State, Fla.App.1968, 214 So. 2d 101, is precisely in point, holding that an indigent appellant is not entitled to credit for time spent in jail awaiting trial although he was given the maximum sentence allowed for the offense. That decision was based simply on Fla.Stat. § 921.-161(1) (1969), F.S.A., which makes the allowance of credit discretionary.
That was before Williams v. Illinois, 1970, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed. 2d 586. I would overrule Miles in the light of Williams. That case held that the Constitution forbids holding an indigent for longer than the maximum term permissible for the substantive offense if he is unable to pay a fine. Mr. Chief Justice Burger spoke there for a unanimous court, and if the analogy to this case is not near perfect I cannot understand why:
“We conclude that when the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination which rests on ability to pay, * * *”
“ * * * we conclude that an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense.”
“ * * * We hold only that a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. * * *”
“ * * * We hold only that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.” (90 S.Ct. 2022, 2023)
Albury’s status differs from that of Williams only in that Albury’s additional imprisonment resulted from his inability to make bail. I think this case is clearly within the spirit of the Supreme Court’s ruling in Williams.
Further, I think that Miles was wrongly decided. It was certainly poorly briefed, because none of the many cases1 in which our Supreme Court has indicated that one sentenced after a second trial is entitled to consideration of time served under a prior void sentence was brought to this court’s attention. If time served under a void sentence should be considered, it seems that time served in jail under no sentence at all should likewise be taken into account. Certainly this is true where the aggregate confinement exceeds the maximum allowed by law as punishment for the offense.
I respectfully dissent.
. See Tilghman v. Mayo, Fla.1955, 82 So. 2d 136; Tilghman v. Culver, Fla.1957, 99 So. 2d 282; Little v. Wainwright, Fla. 1964, 161 So. 2d 213. See also Lassiter v. State, Fla.App.1964, 166 So. 2d 159.
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Rowe v. State, 250 So. 2d 920 (Fla. 2d DCA 1971)…no Florida case affirming denial of severance on such a record as this.4 My view of the unconstitutionality of the action of the trial judge in refusing to give Rowe credit for jail time is expressed in my dissent to Albury v. State, Fla.App.1971, 246 So. 2d 141. He gave Mullin-nix credit for jail time but told Rowe that he didn’t have enough time in jail to make it worthwhile. Rowe's motion for reconsideration of sentence was accompanied by an affidavit showing that he had served 63 days in jail. In my vie…
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Anderson v. Louie L. Wainwright, 267 So. 2d 56 (Fla. 4th DCA 1972)…Ordered pro se Petition for Writ of Habeas Corpus filed here in May S, 1972 is denied. See Miles v. State, Fla.App. 1968, 214 So. 2d 101; Albury v. State, Fla. App.1971, 246 So. 2d 141 and Presha v. State, Fla.App.1968, 216 So. 2d 790.…
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Gelis v. State, 287 So. 2d 368 (Fla. 2d DCA 1973)…PER CURIAM. Since this court decided Miles v. State, Fla.App.2d 1968, 214 So. 2d 101 and Albury v. State, Fla.App.2d 1971, 246 So. 2d 141, it has become clear that one sentenced to a maximum term must be given credit for time spent in jail awaiting trial where the pre-trial detention was a consequence of the prisoner’s indigency. Hart v. Henderson, 5th Cir. 1971, 449 F. 2d 183; Hill v…
Authorities Cited
- Williams v. Illinois, 399 U.S. 235 (U.S. 1970)
- Tilghman v. Culver, 99 So. 2d 282 (Fla. 1957)
- Tilghman v. Mayo, 82 So. 2d 136 (Fla. 1955)
- Little v. Louie L. Wainwright, 161 So. 2d 213 (Fla. 1964)
- Miles v. State, 214 So. 2d 101 (Fla. 2d DCA 1968)
- Lassiter v. State, 166 So. 2d 159 (Fla. 1st DCA 1964)