JUDITH LAMBERTSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Petitioner challenged a circuit court order requiring her as a material witness to either post a $100,000 bond or be incarcerated. The Florida appellate court held that because petitioner was not yet in custody but was merely avoiding legal process, she was not entitled to habeas corpus relief and other remedies were available.
Petitioner is not entitled to habeas corpus relief because she is not in custody. Habeas corpus requires a significant restraint on one's liberty, and petitioner is suffering only the restraint of avoiding legal process. Other remedies are available when the court order is enforced.
[1] A petitioner who is not in actual physical custody is not entitled to a writ of habeas corpus.
[2] Parole or probation constitutes sufficient restraint for habeas corpus purposes.
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Join FLexlaw to unlock all legal intelligence“A petitioner who is not in custody is not entitled to a writ of habeas corpus.”
Establishes the fundamental principle that habeas corpus requires actual custody or significant restraint on liberty.
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Join FLexlaw to unlock all legal intelligencePetitioner is a victim and material witness to an aggravated assault and attempted murder. The circuit court ordered her to post a $100,000 bond to en…
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ORFINGER, Judge.
Petitioner filed a petition for writ of certiorari to review an order of the circuit court which required the Sheriff of Sumter County to take her into custody and incarcerate her as a material witness in a criminal proceeding, unless she posts a bond in the sum of $100,000 “to ensure her appearance at any future court hearing” and additionally notifies the Office of the State Attorney of the Fifth Judicial Circuit of her current address or where she can be contacted. This court ordered that the petition be treated as one for habeas corpus and required the State to respond. We have considered the response and petitioner’s reply thereto, and conclude that it was inappropriate to treat the petition as one for habeas corpus.
Petitioner is a victim of and material witness to an aggravated assault and an attempted murder. Petitioner’s whereabouts are presently unknown and attempts to locate her have been unsuccessful. She has been uncooperative, although she argues that the State Attorney is attempting to question her regarding alleged criminal activities of her co-victim/boyfriend, rather than inquiring into the facts of the relevant crime.
The petitioner is admittedly not in custody and is avoiding arrest. A petitioner who is not in custody is not entitled to a writ of habeas corpus. Starr v. Smith, 77 So. 2d 834 (Fla.1955).
Relying on Sellers v. Bridges, 153 Fla. 586, 15 So. 2d 293 (1943) and Ex Parte Bosso, 41 So. 2d 322 (Fla.1949), petitioner argues that actual physical custody is not required to support a habeas corpus petition, but those cases do not show her entitlement to habeas corpus relief here. In Sellers, the court held that a petitioner who was on parole is under sufficient restraint for habeas corpus purposes. In Bosso, the same principle was applied to a petitioner who was on probation. But neither of those facts is present here. Petitioner is not yet under any restraint as she has not been taken into custody. Cf. Sandstrom v. Kolski, 305 So. 2d 75 (Fla. 3d DCA 1974) (petitioner who promised to appear at a future date was not in custody for the purposes of habeas corpus).
As stated in Carfas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), to meet the requirement of custody, there must be a significant restraint imposed on one’s liberty. The petitioner in this case is not in custody and the only restraint she is suffering is a result of avoiding legal process. Habeas corpus is not an available remedy under these circumstances. Because other remedies are clearly available when the court order is enforced, we decline to consider the original request for a writ of certiorari.
Writ DENIED.
DAUKSCH and UPCHURCH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hernandez v. State (Fla. 3d DCA 2024)…ing upon the rulemaking authority of the Florida Supreme Court in State v. Raymond, 906 So. 2d 1045 (Fla. 2005). It is well-settled that a petitioner seeking relief in habeas corpus must demonstrate he or she is in custody. See Lambertson v. State, 479 So. 2d 773, 774 (Fla. 5th DCA 1985) (“A petitioner who is not in custody is not entitled to a writ of habeas corpus.”); Starr v. Smith, 77 So. 2d 834, 834 (Fla. 1955) (quashing writ of habeas corpus because defendant was not in custody when relief was granted)…
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Giselle Romero and Wachovia Middlebrooks v. Sherea Green (Fla. 3d DCA 2024)…. See Hernandez v. State, 49 Fla. L. Weekly D324, 2024 WL 463827, at *1 (Fla. 3d DCA February 7, 2024) (“It is well- settled that a petitioner seeking relief in habeas corpus must demonstrate he or she is in custody.”) (citing Lambertson v. State, 479 So. 2d 773, 774 (Fla. 5th DCA 1985) (“A petitioner who is not in custody is not entitled to a writ of habeas corpus.”)) And if this was the first petition challenging the constitutionality of section 907.041(5)(b) on this ground, we would agree that the change…1 / 2
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Key v. State (Fla. 6th DCA 2026)
Authorities Cited
- Carafas v. Lavallee, 391 U.S. 234 (U.S. 1968)
- Sellers v. Bridges, 153 Fla. 586 (Fla. 1943)
- Hernandez v. State (Fla. 3d DCA 2024)
- Sonz v. Rose-Marie, 41 So.2d 322 (Fla. 1949)
- Starr v. Smith, 77 So. 2d 834 (Fla. 1955)
- Honorable Jack Sandstrom v. Kolski, 305 So. 2d 75 (Fla. 3d DCA 1974)