MARIO BASCELIO, PETITIONER,
v.
NATHAN MAYO, AS PRISON CUSTODIAN OF THE STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court granted a writ of habeas corpus, finding that a prisoner's sentence for unlawful possession of marijuana exceeded the statutory maximum. The court ordered the prisoner to be resentenced.
Yes, the eleven-year sentence for unlawful possession of marijuana was illegal because it exceeded the statutory maximum of five years for a first offense. Therefore, the prisoner is entitled to habeas corpus relief.
“It was therefore error to sentence the petitioner to imprisonment for eleven years on the first count of the information.”
Establishes the court's finding that the sentence was legally erroneous.
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Join FLexlaw to unlock all legal intelligenceMario Bascelio was found guilty of unlawful possession and sale of marijuana. He was sentenced to eleven years for possession, which is beyond the fiv…
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HOBSON, Justice.
In his petition for writ of habeas corpus petitioner Mario Bascelio shows, and the respondent concedes, that petitioner was found guilty as charged in an information in two counts, the first count charging him with unlawful possession of marijuana and the second count charging him with unlawful sale of the drug. It is also conceded that petitioner was sentenced to imprisonment in the state penitentiary for eleven years on the first count and that sentence on the second count was deferred without day. The maximum sentence provided by F.S. § 398.22, F.S.A., for a first offense of possession of narcotics is five years. There is no suggestion here that this is not a first offense. It was therefore error to sentence the petitioner to imprisonment for eleven years on the first count of the information.
Since the sentence in this case is in excess of that authorized by law, and is accordingly void, it follows that the petitioner must be remanded to the criminal court of record of Hillsborough County, Florida, for the imposition of a proper sentence. Collingsworth v. Mayo, Fla., 77 So. 2d 843; Coleman v. State ex rel. Jackson, 140 Fla. 772, 193 So. 84; In re Camp, 92 Fla. 185, 109 So. 445.
It is so ordered.
DREW, C. J., and THOMAS and THORNAL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978)…nt does not complain of the conditions of his original probation, however, but rather its unlawful length. An unlawful sentence may be collaterally attacked at any time, even after the period for taking a direct appeal has expired. Bascelio v. Mayo, 81 So. 2d 649 (Fla.1955); Collingsworth v. Mayo, 77 So. 2d 843 (Fla.1955); Smith v. Mayo, 63 So. 2d 510 (Fla.1953); In re Camp, 92 Fla. 185, 109 So. 445 (Fla.1926). [*1144] Consistent with the policy of allowing unlawful length of a criminal penalty to be raised…
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Corine Rozinski v. State, 298 So. 2d 546 (Fla. 2d DCA 1974)…ended subsequent to the commission of her offense. Raines v. State, 42 Fla. 141, 28 So. 57 (1900).1 The proper course when sentence is in excess of that authorized by law is to remand for imposition of a proper sentence. Bascelio v. Mayo, Fla.1955, 81 So. 2d 649; Bass v. State, Fla.App.1st, 1970, 232 So. 2d 25. Remanded with directions. MANN, C. J., and BOARDMAN, J., concur. . The cited cases construed Article III, Section 32, of the 1885 Constitution. They are pertinent to construction of Article X, Sec…
Authorities Cited
- Coleman v. State ex rel. Costello Jackson, 140 Fla. 772 (Fla. 1939)
- In re Camp, 92 Fla. 185 (Fla. 1926)
- Collingsworth v. Mayo, 77 So. 2d 843 (Fla. 1955)