Bascelio v. Mayo

81 So. 2d 649, 1955 Fla. LEXIS 3633

• Court: Supreme Court of Florida
• Decided: July 22, 1955
• Status: Published

Opinion

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.