JOHN MILLER, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court held that a prisoner may obtain a writ of error even after being confined in the state prison following sentencing, rejecting the argument that actual confinement creates a time bar to seeking appellate review.
A prisoner retains the right to obtain a writ of error at any time during his imprisonment under sentence of conviction. Actual confinement in the state prison does not bar or time-limit the right to seek the writ, as the court has the power to grant relief and order a new trial or discharge if error is found.
“Practically, if the sheriff should, as he may, deliver the prisoner to the warden of the State prison at the moment the sentence is pronounced by the court, the rule contended for would utterly deprive him of the benefit of the writ”
Demonstrates the impracticality and injustice of accepting a time bar based on actual confinement
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Join FLexlaw to unlock all legal intelligenceJohn Miller was convicted and sentenced to the state prison. The writ of error was not issued until after Miller was actually confined in the state pr…
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delivered the opinion of the court.
The Attorney-General moves this court to dismiss the writ of error in this case upon the ground that the wrk was not issued until after the prisoner, the plaintiff in error, was actually confined in the State prison, in execution of the sentence of the court. And the argument was, that the judgment or sentence being in process of execution, the defendant being actually confined in the State prison, it would avail him nothing if the judgment were reversed, there being no lawful means of relieving him from the confinement, and he could not, therefore, be present at a new trial. And in effect thak the actual confinement in the State prison in execution of the sentence was an actual limitation of the time for procuring a writ of error. By the statute, there is no specific limitation of the time (within which this writ must be obtained in criminal cases. Practically, if the sheriff should, as he may, deliver the prisoner to the warden of the State prison at the moment the sentence is pronounced by the court, the rule contended for would utterly deprive him *576of the benefit of the writ, and he would be subjected to all the ignominy and suffering incident to the conviction and confinement for an infamous offense, while the record and proceedings may show that he had not committed any offense whatever.
Should this court ascertain, upon a consideration of the case, that the prisoner was improperly convicted or improperly sentenced, we apprehend there would be no difficulty in the way of delivering him from further confinement in the State prison under such conviction; so that we do not think that there would be any practical obstacle, in that respect, to a new trial. And it has been held that the term of imprisonment under a sentence of the court, upon conviction, commences at the . date of the sentence; (ex parte Myers, 44;) and, unless a different day be appointed for the commencement of the term of imprisonment, we do not see how it can be otherwise. So that, if the rule should be as contended for, it would in nearly every case deprive the prisoner of the benefit of the writ, for error can only be brought to the final sentence or judgment.
The statute has expressly provided that, in cases of this kind, if the prisoner shall, at the time of applying for the writ, be in custody under sentence of conviction, the allowance of the writ of error shall not discharge such party from custody, except by order of the court or the justice allowing the writ and granting a stay of proceedings. Laws of 1848, Chap. 138, § 5.
This clearly recognizes the right of the prisoner to have the writ at any time during his imprisonment under sentence.
The motion to dismiss is denied.
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Citator
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Lamb v. State, 91 Fla. 396 (Fla. 1926)…a. 364. There is not now and has never been any limitation of time within which writs of error to this court from judgments of the Circuit Courts can be sued out in criminal cases. Collins v. State, 33 Fla. 429, 15 South. Rep. 214; Miller v. State, 15 Fla. 575. In Nickels v. State, 86 Fla. 208, 98 South. Rep. 497, 502; 99 South. Rep. 121, a writ of error coram nobis was issued by the Circuit Court in a criminal case more than six months after the judgment of conviction, six months being the limitation wi…
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Purdy v. State, 150 Fla. 172 (Fla. 1942)…hibit the appellant from taking an appeal- at a time after the expiration of the ninety day period after the sentence is entered. Section 545 of Lewis’ Statutory Construction is cited by counsel to sustain their position, along with Miller v. State, 15 Fla. 575; Collins v. State, 33 Fla. 429, 15 So. 214. We have carefully examined the authorities cited in light of the contention as made by counsel for- appellant. The Legislature had the power to enact the procedure Act and the time fixed by Section 288 th…
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Herring v. State, 132 Fla. 658 (Fla. 1938)…unlawfully deprived of his liberty. The petition will be denied without prejudice to the petitioner to institute proceedings in habeas corpus, if and when he may be advised that he is being unlawfully restrained of his liberty. See Miller v. State, 15 Fla. 575. So ordered. Whitfield, Terrell, Brown and Chapman, J. J., concur.…