STEELE
v.
MAYO
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Petitioner sought habeas corpus relief challenging his conviction for breaking and entering with intent to commit grand larceny. The Florida Supreme Court rejected his challenges to the trial court's nunc pro tunc correction of the sentencing record and to the validity of charging both breaking and entering and larceny as separate offenses.
The trial court had authority to issue a nunc pro tunc order correcting the typographical error in the sentencing record, and such correction cures the error in the judgment. The charges of breaking and entering and larceny are not inconsistent and can both stand as they present two aspects of the same criminal transaction under Florida law.
“We think the trial court was authorized to make the correction and that it cures the error in the judgment of conviction.”
Establishes that nunc pro tunc orders correcting sentencing records are valid and authorized.
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Join FLexlaw to unlock all legal intelligencePetitioner was tried in the Criminal Court of Record, Duval County, on three counts charging breaking and entering with intent to commit grand larceny…
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TERRELL, Acting Chief Justice.
Petitioner was granted . writ of habeas corpus on a petition charging that he was tried in the Criminal Court of Record, Du-val County, for breaking and entering with intent to commit grand-larceny, the information being in three counts. He was convicted on counts one and three and acquitted on count two. He was sentenced on counts one and two. Respondent’s return to the writ shows that petitioner was sentenced to terms of five and two years respectively on counts one and three and that he is lawfully in custody.
The return admits, that the records, Criminal Court of Record, Duval County, because of a typographical error, show that petitioner’s two year-sentence was. predicated on the second count of the information, on which petitioner was acquitted, but says respondent on the 15th day of February, 1954, by nunc pro tunc order, copy of which is made part of the return, the said records were corrected to make them speak the truth. We think the trial court was authorized to make the correction and that it cures the error in the judgment of conviction. Wheeler Fertilizer Company v. Rogers, Fla., 49 So. 2d 83.
It is also contended that the charge of breaking and entering is inconsistent with the charge of larceny, and that both cannot stand.
There is no merit to this contention. Section 810.02 F.S.A. amended the common law to comprehend a situation like we are confronted with here. The information did nothing more than present two aspects of the same criminal transaction -and petitioner was sentenced five years for breaking and entering and two years on the larceny charge. We find no error so the writ of habeas corpus is quashed and petitioner is remanded to the custody of respondent.
It is so ordered.
THOMAS, MATHEWS and DREW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (25 total)
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Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)…ation contains more than one count, but each is a facet of the same transaction, only one sentence should be imposed and that is for the highest offense charged, the District Court sub judice found that the Supreme Court had ruled in Steele v. Mayo, 72 So. 2d 386 (Fla. 1954), that sentences could be imposed for breaking and entering with intent to commit grand larceny and for larceny. Specifically, in affirming the convictions and sentences, the District Court of Appeal, Third District, stated that it must a…
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Carmelos Soverino v. State, 356 So. 2d 269 (Fla. 1978)…wed for conduct arising from the same incident. See, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975); Estevez v. State, 313 So. 2d 692 (Fla.1975), and Steele v. Mayo, 72 So. 2d 386 (Fla.1954). Traditionally, the legislature has left to the prosecutor’s discretion which violations to prosecute and hence which range of penalties to visit upon the offender. Id. at 22. In sum, simply because the Government could have proven a vi…
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Jenkins v. Louie L. Wainwright, 322 So. 2d 477 (Fla. 1975)…arate offenses for which separate sentences may be imposed. We specifically said that these offenses were not “facets of the same transaction” although they arose out of the same incident. We cited for authority our prior decision in Steele v. Mayo, 72 So. 2d 386 (Fla.1954). The United States Supreme Court, in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), approved the charging and sentencing of a defendant for three separate drug offenses arising out of the same incident. The de…
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- Wheeler Fertilizer Co. v. Rogers, 49 So. 2d 83 (Fla. 1950)