CLEM LINDSEY
v.
NATHAN MAYO, AS STATE PRISON CUSTODIAN
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Clem Lindsey sought habeas corpus relief challenging his consecutive sentencing for a 1922 larceny conviction and a 1937 manslaughter conviction. The Florida Supreme Court held that sentences imposed by different courts run consecutively rather than concurrently when the sentencing court lacks knowledge of a prior unsatisfied sentence, and that Lindsey bore the burden of disclosing his escaped convict status to the later sentencing court.
When sentences are imposed by different courts and the later court has no knowledge of an earlier unsatisfied sentence, the sentences run consecutively, with the latter beginning upon expiration of the former. The burden was on Lindsey to disclose his status as an escaped convict to the Palm Beach County court.
“In the instant case there is no indication that the trial court in Palm Beach County had any knowledge of the fact that accused was an escaped convict and that there was pending an unsatisfied judgment and sentence which the convict was required to satisfy by completion of service in prison from which he had escaped.”
Establishes the factual distinction from prior cases and the basis for denying concurrent sentencing.
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Join FLexlaw to unlock all legal intelligenceLindsey was convicted in Calhoun County in 1922 of larceny of a steer and sentenced to five years in state prison. He escaped on July 2, 1923, and rem…
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This is an original habeas corpus proceeding.
The record shows that:
(1) Petitioner, Clem Lindsey, on April 29, 1922 was convicted in the Circuit Court for Calhoun County, Florida, of the offense of larceny of a steer; was adjudged guilty of said offense, and sentenced to serve a period of five years in the State Prison. Petitioner was received at the State Prison of Florida for the service of said sentence on May 4, 1922. On July 2, 1923, Petitioner escaped from the custody of your respondent and remained at large for a period of thirteen years, nine months, and eleven days. On April 13, 1937, petitioner was returned to the State Prison of Florida under the circumstances hereinafter set forth.
(2) On March 25, 1937, petitioner was convicted in the Circuit Court for Palm Beach County, Florida, for the offense of manslaughter, and on April 1, 1937, was adjudged guilty of said offense and sentenced to serve a period of ten years in the State Prison of Florida. Petitioner was received at the State Prison of Florida on April 13, 1937.
Upon the return of petitioner to the State Prison he was required to complete the service of the five year sentence imposed against him by the Circuit Court of Calhoun County, *466Florida. Petitioner completed the service of said sentence on October 24, 1939, and immediately thereafter began the service of the ten year sentence imposed against him by the Circuit Court of Palm Beach County, Florida.”
Petitioner contends that the sentence imposed in Palm Beach County ran concurrently with the unfinished sentence imposed in Calhoun County until the full term of the Calhoun County sentence expired and then continued until the expiration of the Palm Beach County sentence subject to the provisions of Sec. 954.06, Florida Statutes 1941, and relies upon the authority of Gillman v. Chapman, 150 Fla. 724, 8 So. (2nd) 653, and Lake v. McClellan, 101 Fla. 536, 134 So. 522.
Respondent contends that petitioner was, under the circumstances of this case, lawfully required when returned to the State Prison, to first complete the service of the Calhoun County sentence and at the conclusion thereof to have then commenced the service of the Palm Beach County sentence and that the latter sentence has not yet expired.
The cases, supra, relied upon by petitioner are not determinative of this case because of the difference in the factual conditions. In the cited Gillman case sentence was imposed at the same time and by the same court under more than one conviction. In the Lake case sentence was imposed by the court with the record showing that the court then had knowledge of another conviction and sentence then pending with judgment unsatisfied.
In the instant case there is no indication that the trial court in Palm Beach County had any knowledge of the fact that accused was an escaped convict and that there was pending an unsatisfied judgment and sentence which the convict was required to satisfy by completion of service in prison from which he had escaped. Therefore, the trial court did not have before it the necessity of determining and adjudging whether the sentence then being imposed should run concurrently with or subsequently to the completion of the service of the former sentence. It was the duty of the convict, if he desired such advantage as he may have had therefrom, to have then advised the court of the existing conditions.
*467The rule as stated in the Gillman case does not apply where different sentences are imposed, by different courts, and in such cases the sentences will be held to run consecutively, the latter beginning at the expiratoin of the former. This is necessarily true in cases where it is shown that the court imposing the latter sentence had knowledge of the unserved former sentence. See 16 C.J. Sec. 3082, page 1307; 16 C.J. Sec. 3127, p. 1330; Zerbst v. Walker, C.C.A., 67 Fed. (2nd) 667; in re Hudspect, C.C.A., 73 Fed. (2nd) 979; Hightower v. Hollis, 121 Ga. 160, 48 S. E. 969; Sullivan v. Clark, 156 Ga. 706, 119 S. E. 913.
The writ is quashed and the petitioner is remanded to the custody of respondent.
So ordered.
BROWN, THOMAS and SEBRING, JJ., concur.
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Canzoniero v. Canzoniero, 305 So. 2d 801 (Fla. 4th DCA 1975)…rt. We disagree. The constructive service statutes must be strictly construed in order to give the court jurisdiction. McGee v. McGee, 156 Fla. 346, 22 So. 2d 788 (1945); Gribbel v. Henderson, 151 Fla. 712, 10 So. 2d 734 (1942), aff’d 153 Fla. 397, 14 So. 2d 809 (1943); McDaniel v. McElvy, 91 Fla. 770, 108 So. 820 (1926); Crews v. Rohlfing, 285 So. 2d 433 (3d D.C.A.Fla.1973); Naples Park-Vanderbilt Beach Water District v. Downing, 244 So. 2d 464 (2d D.C. A.Fla.1971); Gmaz v. King, 238 So. 2d 511 (2d D.C.A.F…
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Abbate v. Provident Nat'l Bank, 631 So. 2d 312 (Fla. 5th DCA 1994)…the defendant that an action has been commenced against him and warn him that he must appear within a certain time and at a certain place to make such defense as he has. Gribbel v. Henderson, 151 Fla. 712, 10 So. 2d 734 (1942), aff'd, 153 Fla. 397, 14 So. 2d 809 (1943) (en banc). Jurisdiction is perfected by the proper service of sufficient process. Space Coast Credit Union v. The First, F.A., 467 So. 2d 737 (Fla. 5th DCA 1985). Chapter 48, Florida Statutes, regulates process and service of process. These…
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Norwood v. Mayo, 74 So. 2d 370 (Fla. 1954)…that they * * * be served concurrently.” No such express direction is contained in the sentence imposed by Judge Gillis in 1947, which was after the statute became effective. Even in the absence of the statute, however, the case of Lindsey v. Mayo, 153 Fla. 465, 14 So. 2d 809, would be controlling. Although in that case the sentences were imposed by different courts while here the same court imposed the sentences but by different judges and some 23 years apart, the holding in the Lindsey case was based upo…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Forrest Lake v. McClelland, 101 Fla. 536 (Fla. 1931)
- Gillman v. Chapman, 150 Fla. 724 (Fla. 1942)