Opinion
October 24, 1952.
Herman J. Dettmer, in pro. per.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for respondent.
A petition was filed for writ of habeas corpus by Herman J. Dettmer. From the allegations of the petition it appears that he was convicted on several informations of forgery. Under the judgments of the Court the sentences imposed were to run consecutively and a computation of the total time amounted to two years
A typical example of sentence imposed is:
"It is further considered, ordered and adjudged that you be imprisoned by confinement at hard labor in the state penitentiary for a term of four (4) months, sentence to begin immediately upon the expiration of the sentence imposed in case number 21955 by this Court.
"Done and ordered in open Court at Miami, Dade County, Florida, this 28 day of December, A.D. 1950."
It further appears that a typical example of the order of commitment based upon the judgment is as follows:
"In the name and by the Authority of the State of Florida, to the Sheriff of said County and the custodian of the State Prison, Greeting: * * *; Now this is to command you, the said Sheriff, to take and keep and safely deliver the said Herman J. Dettmer into the keeping of the Custodian of the State Prison of the State of Florida forthwith; And this is to command you, the said Custodian, or other Officer in charge of the State Prison, to receive of and from the Sheriff of the said County the said Herman J. Dettmer convicted and sentenced as aforesaid, and him the said Herman J. Dettmer keep and imprison in the State Prison of the State of Florida for the term of four (4) months. And these Presents shall be your Authority for the same. Herein fail not." (Dated Dec. 28, 1950.)
Considering a two-year sentence, and time gained as provided by law, the petitioner claims that his term of imprisonment was completed on September 3, 1952.
The prisoner was convicted, sentenced and committed on December 28, 1950, but was not delivered to the State Prison by the Sheriff of Dade County until March 20, 1951. There was no specification or suggestion in the commitment or any other proceedings for any delay of delivery or deferment as to the commencement of the sentence. The petitioner was imprisoned and confined in the Dade County jail from the time of his conviction, sentence and commitment until the time of his delivery to Raiford, except for the period of actual travel time to the State prison. He took no appeal from the judgments of conviction and they became final and conclusive. It is the contention of the prisoner that in the absence of any law or Court order to the contrary, or request or cause on his part, and without any valid reason being shown by the State for delay or postponement of the commencement of the sentences, said sentences have been served; hence, he is now held without legal authority and without due process of law.
The writ issued as prayed and in due course respondent filed his return.
The respondent admits the judgments, sentences, commitments and imprisonment as set forth in the petition, but denies the conclusions of the petitioner. Instead, respondent takes the position that the sentences did not begin to run until the petitioner was actually delivered to the proper officials at the State Penitentiary. The respondent in his return offers no facts as an excuse for the delay.
The sole question presented is as to when the sentence began to run, under the facts as shown in this case.
Section 922.01, F.S.A., is the controlling statute on this question. This section reads as follows:
"922.01 Commitment of defendant; duty of sheriff
"Upon pronouncement of a sentence imposing a penalty other than a fine only or death the court shall, unless the execution of the sentence is suspended or stayed, and, in such case, upon revocation of the suspension or termination of the stay, forthwith commit the defendant to the custody of the sheriff together with a certified copy of the sentence, and the sheriff shall thereupon, within a reasonable time, if he is not the proper official to execute the sentence, transfer the defendant, together with the copy of the sentence, to the custody of the official whose duty it is to execute the sentence, * * *." (Emphasis supplied.)
This section may be divided into different parts: (1) this section imposes upon and defines the duty of the trial judge to "forthwith commit the defendant to the custody of the sheriff together with a certified copy of the sentence," (2) provided however, if the execution of the sentence is suspended or stayed, then upon revocation of the suspension or the termination of the stay, the duty and power of the trial judge is restored to "commit forthwith", etc. In other words, it is the duty of the trial judge upon conviction and the pronouncement of a sentence imposing a penalty such as in this case to "forthwith commit" the defendant to the custody of the sheriff unless the time is tolled by the execution of the sentence being suspended or stayed, and when the execution of the sentence is suspended or stayed, upon the revocation of the suspension or termination of the stay, the trial judge shall proceed to "commit forthwith", etc., (3) after the trial judge has performed his duty and has delivered the prisoner together with a certified copy of the sentence to the sheriff, the section then provides, "the sheriff shall thereupon, within a reasonable time, * * * transfer the defendant, together with the copy of the sentence, to the custody of the official whose duty it is to execute the sentence."
No duty is imposed upon the sheriff until these conditions are complied with and the prisoner is finally delivered to him for transference to the State Prison. It then becomes the duty of the sheriff to "thereupon, within a reasonable time" deliver the prisoner to the custody, in this case, to the officials at Raiford.
It becomes important to determine the meaning of the words "thereupon, within a reasonable time". In determining the meaning of these words we must consider the whole subject matter of this section. "Thereupon" standing alone would mean "then," "instanter," "at once," "immediately thereafter," "upon the same day of the occurrence last before cited". The words "forthwith" and "thereupon" when used with reference to time "are generally construed to mean without delay or lapse of time." See Vol. 41 Words and Phrases, page 544. However, the word "thereupon" is limited by the words "within a reasonable time."
In enacting this Statute, the Legislature knew the location of Raiford. It knew that a prisoner could not be transferred instanter from the place of conviction and sentence to Raiford. The Legislature knew that no such transfer could be accomplished by the mere push of a button. It takes time to arrange transportation and to transport the prisoner whether by airplane, train or automobile from the seat of conviction and sentence to Raiford. There are differences, such as, distances, facilities, travel, means of transportation, available deputies, between the various places of conviction in the state which may properly be considered in determining "reasonable time" in delivering a prisoner from place of conviction to Raiford. It takes time to see that all papers are in proper order. The "reasonable time" set forth in the Statute limiting the word "thereupon" has reference to such matters as above indicated, but do not include any unexplained delay on the part of the sheriff as shown in this case. It may well be that a sheriff, for his own purposes, would delay or defer the transportation of a prisoner. It could be that the prisoner was detained to be used as a witness by the State in some other case. This Statute makes the sheriff the agent of the State and the State cannot take advantage of the non-performance of a duty imposed by law upon its agent as an excuse to detain a prisoner beyond the time of his commitment, and beyond "a reasonable time," thereafter to transfer the prisoner to Raiford.
When a prisoner is found guilty, judgment is passed upon him and he is delivered to the sheriff as the officer of the State to perform a duty. The prisoner is no longer a free moral agent. He is a ward of the State. He cannot go to Raiford by himself and of his own free will deliver himself to the proper officials at Raiford. In order to begin his sentence at Raiford he is not free to choose the method or mode of transportation and fix the time when he is placed in the custody of the State's agents at Raiford. He has no control over the "reasonable time" within which the sheriff must deliver him to the custody of the officials at Raiford. He must obey orders. He must be transported and guarded by others, and go when he is told to do so.
This is not a case where the prisoner requested that he be confined in the jail to serve his own purpose or convenience and delay would be chargeable to him. This is a case where he was in the custody of the sheriff as the agent of the State, and the time within which he was to be delivered at Raiford was under the absolute control of the sheriff except as limited by law. As shown by this record, the prisoner was not responsible for the delay. He was detained in the County jail in Dade County through no fault of his own and no excuse of any kind has been given by the respondent for the unreasonable delay in transporting the prisoner from the County jail in Dade County to Raiford and delivering him to the custody of the proper official or officials.
It is the judgment of the Court that under the facts of the case the prisoner, Herman J. Dettmer, has served his sentences and hence is being unlawfully detained of his liberty; and the respondent be and he is hereby ordered to discharge the relator. Herman J. Dettmer.
SEBRING, C.J., and THOMAS and ROBERTS, JJ., concur.