RAYMOND E. TILGHMAN, PETITIONER,
v.
NATHAN MAYO, AS PRISON CUSTODIAN OF THE STATE OF FLORIDA, RESPONDENT
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Petitioner Tilghman sought habeas corpus relief after being retried and reconvicted following the vacation of his initial conviction due to lack of notice denying him counsel. The Florida Supreme Court rejected his double jeopardy claim but granted relief requiring the trial court to credit him for time served under the void sentence plus earned gain time upon resentencing.
The court held that retrial does not constitute double jeopardy because a void judgment cannot serve as a predicate for a double jeopardy claim. However, the court agreed that Tilghman is entitled to full credit for time served under the void sentence plus earned gain time, and the case must be remanded for resentencing with proper credit.
“The former judgment was set aside at the instance of the petitioner because of the denial of a fundamental prerequisite to the former trial. The very fact that the former judgment was void is the reason that it cannot effectively be pleaded as a basis of former jeopardy.”
Establishes that a void judgment cannot support a double jeopardy claim.
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Join FLexlaw to unlock all legal intelligenceTilghman was originally convicted of breaking and entering with intent to commit felony; that conviction was affirmed on direct appeal. The trial cour…
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HOBSON, Justice.
Petitioner Raymond E. Tilghman was convicted-of breaking and entering a store with an intent to commit a felony. On appeal the judgment of conviction was affirmed by this court ,in Tilghman v. State, Fla., 51 So. 2d 785. On application of the petitioner, the trial court later reduced the sentence and this order was affirmed in Tilghman v. State, Fla., 64 So. 2d 555. Petitioner subsequently applied to the United States District Court for a writ of habeas corpus. In these proceedings the State conceded that the notice of Tilghman preceding his trial was insufficient, with the result that Tilghman was deprived of his right to obtain counsel. Accordingly, the State conceded that the judgment against Tilghman should be “reversed” (sic) and the petitioner returned for prosecution.
Petitioner has been re-tried, adjudged guilty and sentenced, and has now petitioned this court for a writ of habeas corpus, which we have granted. In the course of the trial he pleaded double jeopardy, and contends here that the proceedings were void on this ground. He also contends that his latest sentence was illegal because it failed to take into account the time he has already served and such gain time as he has earned.
We cannot agree that the second trial for the same offense placed the petitioner in double jeopardy. The -former judgment was set aside at the instance of the petitioner because of the denial of a fundamental prerequisite to the former trial. The very fact that the former judgment was void is the reason that it cannot-effectively be pleaded as a basis of former jeopardy. In general, to constitute a proper basis for the claim of former jeopardy a proceeding must be valid, and if the proceedings are “lacking in any fundamental prerequisite which renders the judgment void” they will not constitute a proper predicate for such a claim. McCleary v. Hudspeth, 10 Cir., 124 F. 2d 445, 447, certiorari denied 316 U.S. 670, 62 S.Ct. 1043, 86 L.Ed. 1745. See also State v. Heard, 49 La.Ann. 375, 21 So. 632; People ex rel. Rosebrough v. Casey, 251 App.Div. 867, 297 N.Y.S. 13; State v. Bartlett, 181 Iowa 436, 164 N.W. 757, L.R.A.1918A, 1179; People v. Cuatt, 70 Misc. 453, 126 N.Y.S. 1114; May v. State, 110 Ark. 432, 162 S.W. 43; Herman v. People, 124 Colo. 46, 233 P. 2d 873; Conner v. State, 196 Miss. 335, 17 So. 2d 527; State v. Helm, 66 Nev. 286, 209 P. 2d 187, certiorari denied 339 U.S. 942, 70 S.Ct. 794, 94 L.Ed. 1358; State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W. 2d 168; Johnson v. Cranor, 43 Wash.2d 200, 260 P. 2d 873, certiorari denied Johnson v. Delmore, 348 U.S. 902, 75 S.Ct. 226.
, We agree, however, and respondent admits, that petitioner is entitled to receive full credit for the time which he served under his void sentence, along with the gain time which he earned, Perry v. Mayo, Fla., 72 So. 2d 382, and that the trial court did not take all of this time into consideration. It follows that the writ heretofore issued must be, and it is hereby, quashed and the petitioner remanded to the sheriff of Polk County with directions to the trial court to. vacate the sentence and upon re-sentence of the petitioner to take into account the time already served, plus his earned gain time.
It is so ordered.
DREW, C. J., and TERRELL and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Jetson RAY v. State, 231 So. 2d 813 (Fla. 1969)…ct that the State’s failure to afford the assistance of counsel in cases such as the present renders the proceedings void at the behest of the State, as opposed to voidable only upon proper challenge by the accused. Cf., Tilghman v. Mayo (Fla.1955), 82 So. 2d 136; Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. In cases involving guilty pleas it is entirely possible and probable that an accused may be content with his adjudication of guilt and the sentence imposed, even though not afforded or a…
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Tilghman v. Culver, 99 So. 2d 282 (Fla. 1957)…e full credit for the time which he served under his void sentence, along with the gain time which he earned, Perry v. Mayo, Fla., 72 So. 2d 382, and that the trial court did not take all of this time into consideration.” Tilghman v. Mayo, Fla.1955, 82 So. 2d 136, 137. [*284] The mandate of this Court ordered “that the writ heretofore issued must be, and it is hereby, quashed and the petitioner remanded to the sheriff of Polk County with directions to the trial court to vacate the sentence and upon resentenc…
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Greene v. City OF Gulfport, 103 So. 2d 115 (Fla. 1958)…as to be void, cf. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; State v. Cotton, 1915, 36 S.D. 396, 155 N.W. 8; People v. McGrath, 1928, 94 Cal.App. 520, 271 P. 549, 551, and this court said in Tilghman v. Mayo, Fla.1955, 82 So. 2d 136, 137, that “In general, to constitute a proper basis for the claim of former jeopardy a proceeding must be valid, and if the proceedings are ‘lacking in any fundamental prerequisite which renders the judgment void’ they will not constitute a proper…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perry v. Mayo, 72 So. 2d 382 (Fla. 1954)
- Tilghman v. State, 64 So. 2d 555 (Fla. 1953)
- McCLEARY v. Hudspeth, 124 F.2d 445 (10th Cir. 1941)
- Meeks v. Iowa, 348 U.S. 902 (U.S. 1954)
- Harris v. New Jersey, 348 U.S. 902 (U.S. 1954)
- Helm v. Nevada, 339 U.S. 942 (U.S. 1950)
- Union Pac. R.R. Co. v. United States, 339 U.S. 942 (U.S. 1950)
- Meredith v. Amrine, 316 U.S. 670 (U.S. 1942)
- Ill. N. Utils. Co. v. City of Geneseo, 316 U.S. 670 (U.S. 1942)