J. N. DEAL, PETITIONER,
v.
NATHAN MAYO, AS PRISON CUSTODIAN OF THE STATE OF FLORIDA, RESPONDENT
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J.N. Deal petitioned for habeas corpus challenging a consecutive one-year sentence imposed under a child support statute. The Florida Supreme Court held that desertion and withholding means of support constitute a single offense under the statute, making the second consecutive sentence void as an abuse of jurisdiction and double jeopardy.
Desertion and withholding means of support constitute but one offense under F.S. § 856.04 regardless of duration, and therefore only one prosecution and one sentence will lie. The consecutive sentence on the second count was void as an abuse of jurisdiction and constituted impermissible double jeopardy.
“desertion and withholding the means of support, it matters not how long continued, constitute but one offense and only one prosecution will lie therefor”
Establishes the core holding that these two criminal acts are treated as a single offense under the statute, regardless of the duration of the withholding period.
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Join FLexlaw to unlock all legal intelligenceDeal pleaded guilty to two counts under F.S. § 856.04: deserting his two minor children on March 14, 1952, and withholding means of support from those…
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[*276] TERRELL, Justice.
Petitioner was tried and convicted on information charging, in the first count, that petitioner “on the 14th day of March, A.D. 1952 * * * did unlawfully desert his two minor children, viz. Agnes Deal and Mary Deal”; second count, that petitioner “on the 14th day of March A.D. 1952 and from the said 14th day of March A.D. 1952 until the 28th day of July, A.D. 1953 * * * did then and there unlawfully withhold from his two minor children, viz. Agnes Deal and Mary Deal, the means of support.” A plea of guilty to the information was entered by petitioner, who was sentenced to serve one' year in the State prison on the first count and one year in the State prison on the second count, the two sentences to run consecutively.
Petitioner, by habeas corpus-in this Court, challenges the validity of the second sentence to one year’s imprisonment in the State penitentiary.
It is contended that F.S. § 856.04, F.S.A., under which petitioner was convicted provides a maximum punishment or confinement of one-year in the State prison for deserting his child or children or who shall withhold from them or either of them' the means of support. In other words, the contention is that desertion and withholding the means of support, it matters not how long continued, constitute but one offense and only one prosecution will lie therefor. This view is supported by Brooke v. State, 99 Fla. 1275, 128 So. 814, 69 A.L.R. 1173; Haag v. State, 111 Fla. 781, 149 So. 566; Bueno v. State, 40 Fla. 160, 23 So. 862; Simmons v. State, 151 Fla. 778, 10 So. 2d 436.
We think these cases control the point, so it follows that the one year consecutive sentence under Count Two of the information was void and subject to collateral attack by habeas corpus on the ground (1) the court was devoid of jurisdiction to impose it, (2) it constituted double jeopardy which is condemned by law. Sullivan v. State ex rel. Cootner, Fla., 44 So. 2d 96; 39 C.J.S., Habeas Corpus, § 23, pp. 474-475; Ex parte Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658; Ex parte Crawford, 109 Cal.App. 33, 292 P. 520.
It is accordingly our view that petitioner is unlawfully detained and that he should be and is entitled to be discharged.
It is so ordered.
ROBERTS, C. J., and SEBRING and MATHEWS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Buchanan v. State of Fla. & Nathan Mayo, 111 So. 2d 51 (Fla. 1st DCA 1959)…ount in fact and in law to a single conviction under the statute. I am not unmindful of the general rule that in habeas corpus proceedings double jeopardy is not available to petitioner unless apparent on the face of the record (Deal v. Mayo, Fla., 76 So. 2d 275). This case clearly falls within that rule. The error here is so fundamental as to have the effect of denying to appellant the essential requirements of the law, and his failure to register objection on the trial will not preclude this court from gr…
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Volney Brooker v. Mayo, 77 So. 2d 854 (Fla. 1955)…of the evidence will not be tested by habeas corpus. White v. Penton, 92 Fla. 837, 110 So. 533. It appears that petitioner stands convicted of two different crimes separated by one year in time. This excludes him from the rule in Deal v. Mayo, Fla., 76 So. 2d 275, where the imposition of two one-year sentences arising from the same unlawful act was condemned. It is accordingly our judgment that petitioner should be and he is hereby remanded to the custody of respondent It is so ordered. MATHEWS, C. J.,…
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Stephens v. Mayo, 76 So. 2d 656 (Fla. 1954)…tends that one year is the limit that a sentence may be imposed on him under said statute, that he has already served one year, and that he is entitled to be discharged. A similar question was before this Court and was adjudicated in Deal v. Mayo, 76 So. 2d 275. It is admitted by respondent that the decision in the Deal case controls this case. We have examined the record and find this to be correct. It is accordingly our view that petitioner is unlawfully detained and that he is entitled to be and is he…
Authorities Cited
- In re Snow, 120 U.S. 274 (U.S. 1887)
- Simmons v. State, 151 Fla. 778 (Fla. 1942)
- Grant v. PHÆNIX Life Ins. Co., 120 U.S. 271 (U.S. 1887)
- Bueno v. State, 40 Fla. 160 (Fla. 1898)
- Brooke v. State, 99 Fla. 1275 (Fla. 1930)
- Haag v. State, 111 Fla. 781 (Fla. 1933)