Albert Guerney Taylor was adjudged guilty of murder in the second degree on a plea of guilty to an indictment charging that offense. James Parrish was also *Page 299 adjudged guilty of murder in the second degree and after notice to the Parole Commission a hearing was held and he was placed on probation by the trial court. He was forthwith arrested and incarcerated by the sheriff of Dade County. Writ of habeas corpus was sued out but no further step was taken in either cause.
Both causes come here by certificate under Rule 38 of the Rules of this Court, the question certified being whether or not a trial court has the power to place on probation one adjudged guilty of murder in the second degree.
The applicable statute is Section Twenty, Chapter 20519, Acts of 1941, and is as follows:
"The courts of the State of Florida having original jurisdiction of criminal actions, where the defendant in a criminal case has been found guilty upon verdict or plea, except for an offense punishable by death or life imprisonment, may, at a time to be determined by the court, hear and determine the question of the probation of such defendant."
This is a typical case to invoke the provisions of Rule 38. The constitutional validity of the act, the regularity of the indictment or the trial and the original jurisdiction of the court are not drawn in question. A decision of the question certified will terminate the cause. Murder in the second degree is defined and punished by Section 7137, Compiled General Laws of 1927, the punishment imposed being "imprisonment in the state prison for life, or for any number of years not less than twenty years," the length of imprisonment within these bounds being of course measured by the discretion of the trial court. *Page 300
Chapter 20519, Acts of 1941 (State Parole and Probation Act) is similar in purport to the Federal Probation Act which has been liberally construed in the interest of those who have not become hardened criminals but who are still possible of restoration to an honorable state in society by humane treatment and skillful handling on the part of those clothed with that responsibility. It vests in the trial judge power to give the first offender another chance provided it is shown that there is a fair possibility of reclamation. United States v. Murray, 275 U.S. 347, 48 Sup. Ct. 146, 72 L. Ed. 309; Rosenwinkel v. Hall, 61 F.2d 724; Riggs v. United States,14 F.2d 5.
We think a like interpretation should control the State Parole and Probation Act. Construed in that light it is our view that Section 20 here quoted did nothing more than enlarge the power and discretion of the trial judge in criminal cases. In other words if a second degree murder judgment warrants the maximum punishment of life imprisonment there would be no basis for probation under that part of the Act quoted but if the judgment warranted less than life imprisonment then the discretion of the trial judge is enlarged to consider the question of placing the defendant on probation.
This interpretation is in keeping with the humane and benevolent purpose of the Act and accords the trial judge a discretion that will enable him to effectuate its purpose. It also squares with the interpretation of similar acts throughout the country and is in harmony with the prevailing thought with reference to their enforcement. The question of probation should not be considered unless the subject is one clearly within the purpose and spirit of the Parole *Page 301 and Probation Act. It will not be permitted as a subterfuge to mitigate the punishment of those not within its protection. A wise and uniform practice would be for the trial judge to recommend probation to the Parole Commission when he thinks it advisable.
Our answer to the question certified is that if the judgment for punishment of second degree murder is less than life imprisonment and the defendant is one contemplated by the Parole and Probation Act, the trial judge may in his discretion place him on probation.
WHITFIELD and ADAMS, JJ., concur.