ANDREW RUSSO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A judgment and sentence in a criminal case are not defective if the offense is clearly ascertainable from the entire record, even if not explicitly stated in the sentence itself.
Appellant was convicted of buying, receiving, or aiding in the concealment of stolen property, knowing it was stolen. The initial appellate opinion re…
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DOWNEY, Judge.
Appellant was charged with and convicted of buying or receiving or aiding in the concealment of stolen property knowing the same to have been stolen. The judgment and sentence appealed from adjudicated appellant “GUILTY OF BUYING OR RECEIVING OF [sic] AIDING IN CONCEALMENT OF STOLEN PROPERTY, AS CHARGED IN THE INFORMATION.” The information alleged that Russo knew the property had been stolen.
The opinion of this court, published November 19, 1976, reversed and remanded this cause for entry of a proper judgment because the judgment failed “to recite knowledge on the defendant’s part of the stolen character of the property.”
On petition for rehearing the State correctly points out that such a judgment is not defective, relying upon Hambrick v. State, 80 Fla. 672, 86 So. 623, 14 A.L.R. 987 (1920), and Caston v. State, 58 So. 2d 694 (Fla.1952).
In Hambrick, supra, the Supreme Court stated the rule applicable herein as follows:
“ ‘. . . [w]hen the record in a criminal case shows fully the crime for which the prisoner was indicted and all the proceedings thereon, through trial and verdict up to conviction and sentence, the failure in the sentence to name the crime for which the prisoner is sentenced may be supplied by reference to the rest of the record.’ ”
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“The entire record may be looked to in ascertaining the offense for which the accused is sentenced, and an erroneous recital or statement of the offense by the court in pronouncing sentence, or of the clerk in recording in the minutes of the proceedings kept by him the judgment imposed, will not vitiate the judgment when the accused was indicted, tried and convicted. In such case the record furnishes a complete protection against another prosecution for the same offense.” Hambrick v. State, 80 Fla. at 674, 86 So. at 624.
Accordingly, our opinion published November 19, 1976, is vacated and withdrawn, and the judgment and sentence appealed from are affirmed.
ALDERMAN, J., concurs.
CROSS, J., dissents, without opinion.
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Delaney v. State, 342 So. 2d 1098 (Fla. 3d DCA 1977)…D.C.A. 1974); State v. Barber, 301 So. 2d 7 (Fla.1974); Davis v. United States, 409 U.S. 841, 93 S.Ct. 193, 34 L.Ed.2d 80 (1973). Even if the proper motion had been made, it is doubtful that any error would have been made to appear. Russo v. State, 340 So. 2d 1273 (Fla. 4th D.C.A. 1976). As to the second error urged, no objection to the first comment on the part of the prosecutor during closing argument was made and, therefore, no error has been made to appear in this regard. Rogers v. State, 158 Fla. 582, 3…
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Kirkland v. State, 357 So. 2d 766 (Fla. 1st DCA 1978)…dge of its stolen character, and is defective. Eagle v. State, 270 So. 2d 468 (Fla. 4th DCA 1972); Tadlock v. State, 343 So. 2d 961 (Fla. 1st DCA 1977), both cases in which the cause was remanded for entry of a corrected judgment. In Russo v. State, 340 So. 2d 1273 (Fla. 4th DCA 1976), the court held that a judgment adjudicating appellant guilty of buying or receiving or aiding in the concealment of stolen property, as charged in the information, was not defective despite its failure to recite knowledge on def…
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Newman v. State, 361 So. 2d 731 (Fla. 4th DCA 1978)…PER CURIAM. AFFIRMED. Russo v. State, 340 So. 2d 1273 (Fla. 4th DCA 1976). ANSTEAD and MOORE, JJ., concur. DAUKSCH, J., dissents.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hambrick v. State, 80 Fla. 672 (Fla. 1920)
- Caston v. State, 58 So. 2d 694 (Fla. 1952)