Opinion
Opinion Filed August 2, 1933.
A purported judgment of the Criminal Court of Record of Hillsborough County, relied upon as the basis for the petitioner's detention as a prisoner in the State Prison, reads as follows:
"Comes now the defendants Young Ferris and Joe Whiting with their Counsel, W. K. Zewadski, Jr., and presented and argued to the Court a motion for a new trial for the crime of which they were and stand convicted and the Court being fully advised in the premises, denied said motion and pronounced sentence on the defendants as follows:
"It is the judgment of the Court and the sentence of the law that you Young Ferris and you Joe Whiting and each of you be taken by the Sheriff or his lawful deputy to the State's Prison of the State of Florida, and be delivered to the principal keeper thereof, there to be confined in said State's Prison at hard labor for a period of Twenty (20) years each from the date of your incarceration therein."
The above purported judgment and sentence was rendered by the Criminal Court of Record on October 18, 1927, which was prior to the decision of this Court in the case of Neoma Caughn v. State, 98 Fla. 185, 122 Sou. Rep. 565, wherein we held an exactly similar sentence void for want of a proper judgment of conviction upon which to base it.
Where, upon habeas corpus, it appears that a sentence to the penitentiary is void, because of want of a proper judgment of conviction to support it, the proper disposition to be made of the prisoner is to remand him to the appropriate court of first instance to be resentenced in due and legal form, after the entry of a proper judgment adjudicating the defendant's guilt of the precise crime for which the sentence of the law is authorized to be imposed.
It is therefore considered, ordered and adjudged by the Court that the prisoner, Young Ferris, be and he is hereby remanded to the custody of the Sheriff of Hillsborough County, Florida, to be produced by said Sheriff before the Judge of the Criminal Court of Record of Hillsborough County, Florida, for entry of a proper judgment and the imposition of an appropriate sentence according to law.
WHITFIELD, TERRELL, BROWN and BUFORD, J. J., concur.