Williams v. State

28 So. 2d 691, 158 Fla. 415, 1947 Fla. LEXIS 531

• Court: Supreme Court of Florida
• Decided: January 17, 1947
• Status: Published

Opinions

ADAMS, J.:

Appellants were convicted of entering without breaking with intent to commit a felony, to-wit — grand larceny and were sentenced to imprisonment for five years and to pay the costs which were taxed at $71.43, or in default of the payment to serve an additional thirty days.

One question presented on this appeal is whether the sentence is legal. It is submitted that the judgment must be reversed under authority of Howell v. State, 136 Fla. 582, 187, So. 163.

By authority of Sec. 775.06 Fla. Stat. 1941, F.S.A., the court might have imposed both a fine and imprisonment. In that event a predicate would have been laid upon which to sustain a further award of cost against the convicts. It does not comport with logic to say that this judgment would be correct if the court had only assessed a nominal fine of one dollar whereas, in fact, no fine was assessed.

In Howell supra the statute (Sec. 782.07 Fla. Stat. 1941, F.S.A.) did not expressly authorize both imprisonment and fine. The same is true as to the penalty clause in the statute now before us, however Sec. 775.06 supra is a general statute in that it applies to all offenses. It does not appear that we considered this statute when the Howell cáse was decided. The fact that no fine was imposed to sustain the imposition of costs is all in favor of appellants.

We might exercise our power under Sec. 59.34, Fla. Stat. 1941, F.S.A., and affirm the judgment after deleting the part taxing costs and the alternative imprisonment for fáilure to pay same, nevertheless we are of the view that the judgment is good as against this attack. We now recede from whatever may appear to the contrary in Howell supra.

' The remaining question goes to the competency and sufficiency of the evidence. The evidence is not as conclusive as to the appellants,' Carlton and Stocks, as it is regarding Williams, yet we are satisfied to approve it as did the trial judge.

The judgments are affirmed.

CHAPMAN and TERRELL, JJ., concur. FABISINSKI, Circuit Judge, concurs specially. THOMAS, C. J., and BUFORD, J., dissent.