RICHARD CHARLES BYERS, PETITIONER,
v.
H. G. COCHRAN, JR., DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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A petitioner cannot challenge a consecutive sentence via habeas corpus before it has begun to be served.
Petitioner sought a writ of habeas corpus to challenge a ten-year sentence entered April 28, 1961, which was to be served consecutively to a five-year…
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In his petition for writ of habeas corpus the petitioner, Richard Charles Byers, alleged grounds which this Court felt to have merit. The writ issued and respondent was commanded to make return to it.
Respondent’s return shows that petitioner has not yet begun to serve the sentence of which he complains. He is currently detained by the respondent under a sentence of five years entered pursuant to conviction of another offense, said judgment and sentence being entered December 13, 1960. The sentence which he attacks was entered April 28, 1961 and was for ten years “at the expiration of sentence now serving.”
Petitioner is not entitled on habeas corpus to question the validity of a consecutive sentence he has not yet begun to serve, since he is already in custody under a sentence which he does not question. Finch v. Mayo, Fla.1955, 79 So.2d 770; Gorman v. Cochran, Fla.1961, 127 So.2d 667.
Accordingly, the writ heretofore issued must be quashed and the petitioner remanded to the custody of the respondent, without prejudice to his right to again petition for writ of habeas corpus wherein he may attack the second sentence, once he has completed serving his present sentence and has commenced serving the one herein questioned.
It is so ordered.
ROBERTS, C. J., and DREW, THOR-NAL, O’CONNELL and CALDWELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fretwell v. Louie L. Wainwright, 185 So. 2d 701 (Fla. 1966)…1965, by the Circuit Court of Volusia County., Petitioner does not question the sentence he is presently serving and is not entitled on habeas corpus to attack the validity of a consecutive sentence he has not yet begun to serve. Byers v. Cochran, 143 So. 2d 319 (Fla.1962). Accordingly petition for writ of habeas corpus is discharged. THOMAS, ROBERTS, DREW and CALDWELL, JJ, concur. THORNAL, C. J., agrees to judgment. ERVIN, J., concurs specially with opin-' ion.…
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Mann v. Louie L. Wainwright, 191 So. 2d 867 (Fla. 1st DCA 1966)…a petitioner may not utilize habeas corpus proceedings to attack the validity of a consecutive sentence when he is presently confined under a sentence which he does not question. Fretwell v. Wainwright, 185 So. 2d 701 (Fla.1966) ; Byers v. Cochran, 143 So. 2d 319 (Fla.1962) ; Gorman v. Cochran, 127 So. 2d 667 (Fla.1961). In his brief submitted to this Court the appellant states that he is questioning his Broward County sentence by a habeas corpus proceeding now pending in the United States District Court for…
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James Milton Mann (alias Willie Pope) v. State, 176 So. 2d 585 (Fla. 1st DCA 1965)…PER CURIAM. Affirmed. See Byers v. Cochran, 143 So. 2d 319 (Fla.1962). STURGIS, C. J., and WIGGINTON and RAWLS, JJ., concur.…
Authorities Cited
- Gorman v. Cochran, 127 So. 2d 667 (Fla. 1961)
- Berry F. Finch v. Mayo, 79 So. 2d 770 (Fla. 1955)