MONK KISER ALIAS PEG KISER,
v.
NATHAN MAYO, AS CUSTODIAN OF STATE PRISON
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This habeas corpus case concerns the legality of a sentence imposed on a petitioner convicted of aggravated assault. The Florida Supreme Court found the sentence to be unauthorized by law and ordered the petitioner to be returned to the circuit court for lawful sentencing.
No, the sentence was not authorized by law. The court held that the petitioner should be returned to the circuit court for lawful judgment and sentence.
“The sentence to State prison was without authority of law.”
Establishes the core legal flaw in the petitioner's sentence.
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Join FLexlaw to unlock all legal intelligenceThe petitioner was tried for assault with intent to murder, convicted of aggravated assault, and sentenced to one year at hard labor in State Prison. …
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This is an original proceeding in habeas corpus. The petition shows and the return admits that petitioner was tried on a charge of assault with intent to murder and was convicted of aggravated assault and that thereupon petitioner was sentenced to serve one (1) year at hard labor in State Prison.
The sentence to State prison was without authority of law. See Sec. 5061 R. G. S., 7163 C. G. L., Sec. 5004 R. G. S., 7103 C. G. L.
The judgment and sentence being not authorized by law, the jurisdiction of the Circuit Court continues until a lawful judgment shall have been entered.
So the petitioner should be now delivered to the Sheriff *776of Madison County and by him presented to the Circuit Court of such County at its next regular or special term, there to receive lawful judgment and sentence under the verdict heretofore rendered.
So ordered.
Terrell, C. J., and Thomas, J., concur.
Whitfield, J., concurs in opinion and judgment.
Justices Brown and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
Cases With Similar Vibessemantic neighbors from the corpus
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Helton v. State, 106 So. 2d 79 (Fla. 1958)…te Grove, 1927, 43 Idaho 775, 254 P. 519; State v. Busnelli, 1956, 40 N.J.Super. 244, 122 A. 2d 781. Other cases on both sides of the question are cited in the annotation in 141 A.L.R. at pages 1225 et seq. And cf. Kiser v. Mayo, 1939, 138 Fla. 775, 190 So. 246. The petitioner contends, however, that such jurisdiction could not be exercised in this case, some twelve years after the date of his conviction. There is merit to this contention. Here, the maximum sentence that could have been imposed against p…
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State v. Edmundo Febre, 156 Fla. 149 (Fla. 1945)…appellee was guilty of an aggravated assault. The State of Florida is bound by this finding of fact the same as a jury’s verdict. The crime of aggravated assault is a misdemeanor. See Sections 775.08 and 784.04, Fla. Stats. 1941 (FSA) Kiser v. Mayo, 138 Fla. 775, 190 So. 246, Section 11 of Article V of the [*152] Constitution provides that Circuit Courts shall have appellate jurisdiction ... of all misdemeanors tried in the Criminal Courts of Record. See Section 924.08, Fla. Stats. 1941 (FSA); Byrd v. State…
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Wright v. State, 643 So. 2d 1157 (Fla. 4th DCA 1994)…tice of appeal is filed, as here, within 30 days of the court’s order.5 There is some authority for the proposition that a sentencing court never loses jurisdiction over a case where an illegal sentence has been imposed. Kiser v. Mayo, 138 Fla. 775, 190 So. 246 (1939); and Phillips v. State, 455 So. 2d 656 (Fla. 5th DCA 1984). If indeed the sentence were truly illegal, and the trial court had simply not understood that fact even after a rehearing, I should think that would only make action by a higher cour…
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