Terrell v. Wiggins , 55 Fla. 596 ( 1908 )

Hooker, J.,

(after stating the facts.)—It is contended here that the plaintiff in error was entitled to his discharge after the expiration of twelve months from the date of the sentence, and Miller v. State, 15' Fla. 575, is relied on to support this contention. Subsequent to the-decision in that case the question involved was very thoroughly examined in the case of State v. Horne, 52 Fla.. 125, 42 South. Rep. 388. There is no bill of exceptions in this case and it will be observed that the judge below finds that the petitioner has only suffered about one-sixth of the term of imprisonment imposed upon him by the judgment of the county court, and that during the balance of the term -he was at liberty with his own consent, if not at his own request. He therefore refused to discharge the plaintiff in error. This ruling of the circuit judge was in harmony with the principles o.f the case of State v. Horne, supra. On page 135 the court says: “the law does not contemplate that the -court in fixing the punishment shall also fix the beginning and ending of the period during, which the imprisonment shall be suffered. The time fixed for executing- a sentence, or for the .commencement of its execution, is not one of its essential elements, and strictly speaking, is not a part of the sentence at all. The essential portion of the sentence is the punishment, including- the kind of punishment and the amount thereof without reference to the time when it shall be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, should as a rule be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. Expiration of the time without imprisonment is in no sense an execution of the sentence.” It is true that in this case the county judge does not fix the time for the beginning of the sentence as was done in the Horne case; but this circumstance adds greater force to the statement “expiration of time without imprisonment is in no sense an execution of the sentence,” for the circuit judge finds that only about one-sixth of the time of imprisonment imposed had had been suffered by the petitioner and .that during the balance of the term he was at liberty with his own consent if not at his own recpiest. We thoroughly agpee with the circuit judge that the petitioner was not entitled to be discharged, and his order is hereby affirmed.

Taylor and Parkhill, JJ., concur;

Shackleford, C. J., Cockrell and Whitfield, JJ., concur in the -opinion.