The writ of error herein was allowed and taken under the statute to a final order made in habeas corpus proceedings before the Circuit Judge in Union County in which county the State Prison is located. The court held the sentence of the petitioner to imprisonment in the State Prison to be void, and ordered that the petitioner "be taken before the Circuit Court in due course for a proper sentence."
The petitioner was convicted in the Circuit Court for Seminole County and sentenced to "be confined at hard labor in the State Prison of the State of Florida, for and during the period of three years."
The statute provides that every person who violates its provisions "shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment for not more than ten years." Section 7251 (5150), Compiled General Laws. *Page 748
It is contended that as the statute does not specifically state that the imprisonment shall be in the State Prison or State Penitentiary, that the imprisonment should be in the county jail. Walden v. State, 50 Fla. 151, 39 So.2d 151, is relied upon. In that case the statute provided for punishment "by imprisonment not more than ten years, or by fine not exceeding two thousand dollars, or by both fine and imprisonment." Section 1, Chapter 4965, Acts of 1901. The statute there did not make the offense a felony and did not provide for imprisonment in either the State Penitentiary or in the county jail; therefore, Section 7103 (5004), Compiled General Laws, required the imprisonment to be in county jail as for a misdemeanor, and not in the State Prison as for a felony.
The Constitution provides that "the term felony, whenever it may occur in this Constitution or in the laws of the State, shall be construed to mean any criminal offense punishable with death or imprisonment in the State penitentiary." Section 25, Article XVI.
The statutes contain the following:
"Whenever punishment by imprisonment is prescribed and the said imprisonment is not expressly directed to be in the State prison, it shall be taken and held to be imprisonment in the county jail, and whenever the punishment is prescribed to be fine or imprisonment (whether in the State prison or county jail), in the alternative, the court may, in its discretion, proceed to punish by both fine and such imprisonment." Section 7103 (5004), Compiled General Laws.
"Any crime punishable by death, or imprisonment in the State prison, is a felony, and no other crime shall be so considered. Every other offense is a misdemeanor." Section 7105 (5006), Compiled General Laws.
In this case the statute expressly provides that every *Page 749 person violating the section "shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment for not more than ten years." As under the Constitution the term felony shall be construed to mean any criminal offense punishable with death or imprisonment in the State penitentiary, and as under Section 7105 (5006), Compiled General Laws, a crime punishable by death or imprisonment in the State prison is a felony, Section 7251 (5150), Compiled General Laws, in making the offense a felony followed by the imposition of a penalty of "imprisonment for not more than ten years," necessarily means imprisonment in the State penitentiary as for a felony and not imprisonment in the county jail as for a misdemeanor; and Section 7103 (5004), Compiled General Laws, is not controlling as it was in the Walden case,supra.
If under Section 25, Article XVI, of the Constitution, a felony is any criminal offense punishable with death or imprisonment in the State penitentiary, then under Section 7105 (5006), Compiled General Laws, any criminal offense punishable by death or imprisonment in the State prison is a felony; and if an offense is by statute made a felony; it is "punishable" by death or imprisonment in the State penitentiary; and when a criminal offense is made a felony by statute and the period of imprisonment is fixed by statute without stating the place of imprisonment, it means imprisonment in the State penitentiary. This is the necessary effect of Section 25, Article XVI, of the Constitution and of Section 7105 (5006), Compiled General Laws, upon the provision for imprisonment contained in Section 7251 (5150), Compiled General Laws, under which the defendant in error was convicted and sentenced to imprisonment in the State prison.
*Page 750Reversed.
TERRELL and BROWN, J. J., concur.
BUFORD, C. J., and ELLIS, J., dissent.
DAVIS, J., disqualified.
ON REHEARING.