ALFRED WITTCOP, PETITIONER,
v.
LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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Petitioner Wittcop sought a writ of habeas corpus challenging his concurrent sentences imposed by the Circuit Court of Pinellas County. The appellate court dismissed the petition because Wittcop failed to exhaust his adequate remedy of filing a motion in the sentencing court under the newly adopted Criminal Procedure Rule No. 1.
The petition for writ of habeas corpus cannot be entertained because petitioner failed to apply for relief by motion to the sentencing court as required by Criminal Procedure Rule No. 1, and the remedy by motion is adequate and effective to test the legality of his detention.
“A prisoner in custody under Sentence of a court established by the Laws of Florida claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of Florida, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
Establishes the procedure and remedy available under newly adopted Criminal Procedure Rule No. 1 for challenging sentences.
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Join FLexlaw to unlock all legal intelligenceAlfred Wittcop was serving two concurrent sentences imposed by the Circuit Court of Pinellas County for two offenses to which he pleaded guilty, each …
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On April 3, 1963, petitioner, Alfred Wittcop, filed in this court his petition for writ of habeas corpus alleging illegal detention by the respondent. At the time, he was and still is serving two concurrent sen*636tences imposed by the Circuit Court of Pinellas County for two offenses to which he plead guilty, each sentence being for a term of six months to five years.
On April 1, 1963, the Supreme Court of Florida had adopted and promulgated Criminal Procedure Rule No. 1, 31 F.S.A. delineating the procedure and remedy applicable to the situation here. 151 So.2d 634. In its pertinent aspects, the rule provides :
“A prisoner in custody under Sentence of a court established by the Laws of Florida claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of Florida, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
and further specifies:
“An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”
After careful examination of the petition, we find that this applicant has failed to apply for relief by motion to the sentencing court, pursuant to the provisions of the rule above quoted. Thus it cannot be said that petitioner has been denied relief by that court, since his petition does not show that he applied for it. Rule 1 specifies that a motion for relief as provided for in the quoted excerpts may be made at any time. Thus, the course which petitioner should follow has been mapped by the newly adopted rule. Since it appears that petitioner’s remedy by motion is adequate and effective to test the legality of his detention, the application for the writ of habeas corpus cannot be entertained. It is so ordered.
SHANNON, C. J., and KANNER and SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jetson ROY v. Louie L. Wainwright, 151 So. 2d 825 (Fla. 1963)…de,” University of Pennsylvania Law Review, Vol. Ill, p. 788, April 1963. The relief sought by the instant petition could be accomplished under the quoted rule upon a proper showing of entitlement to such relief. Wittcop v. Wainwright, (Fla.App. 2) 151 So. 2d 635. The petition, therefore is denied but without prejudice to any rights which the petitioner might have to proceed in accordance with the provisions of Criminal Procedure Rule Number 1. It is so ordered. ROBERTS, C. J., and TERRELL, THOMAS, DREW, O…
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Falagon v. State, 167 So. 2d 62 (Fla. 2d DCA 1964)…two concurrent sentences through habeas corpus proceedings. We denied the petition on the ground that the proper procedure to test the legality of a current sentence on constitutional grounds is by the rule. See Wittcop v. Wainwright, Fla.App.1963, 151 So. 2d 635. The order appealed is reversed and the cause remanded for further proceedings consistent herewith. Reversed and remanded. ANDREWS, J., concurs. ALLEN, Acting C. 'J., concurs specially. . See. e. g. King v. State, Fla.App.1963, 157 So. 2d 440.…
Authorities Cited
- In re Criminal Procedure, 151 So. 2d 634 (Fla. 1963)