MICHAEL JOSEPH SOLITRO, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Second District Court of Appeal dismissed an application for leave to seek post-conviction relief, holding that such leave is not required under Criminal Procedure Rule 1, which provides a streamlined process for challenging convictions.
No, leave from an appellate court is not a prerequisite for applying for relief under Criminal Procedure Rule 1, even if the conviction has been affirmed by the appellate court.
“While such leave is necessary to application for habeas corpus or coram nobis, Tilghman v. State, Fla.1953, 64 So. 2d 555; Ex parte Welles, Fla.1951, 53 So. 2d 708, it is not a prerequisite to application for relief under Rule 1.”
This quote establishes the core legal principle that leave from an appellate court is not required for applications under Criminal Procedure Rule 1, distinguishing it from traditional writs.
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Join FLexlaw to unlock all legal intelligenceAppellant Michael Joseph Solitro, Jr. applied to the appellate court for leave to seek post-conviction relief in the trial court, aiming to vacate a c…
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This cause recurs upon petitioner-appellant Solitro’s application for leave to seek post-conviction relief in the trial court under “Criminal Procedure Rule 1 or coram nobis [F.S.A. ch. 924 Appendix].” This court affirmed the conviction appellant now seeks to vacate. Solitro v. State, Fla.App.1964, 165 So.2d 223 (Second District Court of Appeal, opinion filed May 22, 1964).
We recently held that grounds for collateral attack upon a conviction which would traditionally be urged by writ of error coram nobis should, under otherwise appropriate circumstances, be urged under Criminal Procedure Rule 1. Grant v. State, Fla.App.1964, 166 So.2d 503 (Second District Court of Appeal, opinion filed July 17, 1964). The latter provision provides a means by which relief traditionally available by writs of habeas corpus or coram nobis may be expeditiously afforded in the trial courts. It is, however, procedurally dissimilar in many respects, including, with respect to the instant application, the absence of any requirement that application be made in an appellate court for *475leave to collaterally assail, in the trial court, a conviction and sentence affirmed "by the appellate court. While such leave is necessary to application for habeas corpus or coram nobis, Tilghman v. State, Fla.1953, 64 So.2d 555; Ex parte Welles, Fla.1951, 53 So.2d 708, it is not a prerequisite to application for relief under Rule 1.
The application is dismissed.
SMITH, C. J., and ALLEN and WHITE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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State v. Basilio Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978)…e under Fla.R.Crim.P. 3.850. Fast v. State, 221 So. 2d 203 (Fla. 3d DCA 1969); Tolar v. State, 196 So. 2d 1 (Fla. 4th DCA 1967); Falagon v. State, 167 So. 2d 62 (Fla. 2d DCA 1964); Grant v. State, 166 So. 2d 503 (Fla. 2d DCA 1964); Solitro v. State, 166 So. 2d 474 (Fla. 2d DCA 1964). This is also the position taken in the federal courts as to motions to vacate judgment and sentence under 28 U.S.C. § 2255 from which Florida’s Fla.R.Crim.P. 3.850 is taken almost verbatim. Laughlin v. United States, 154 U.S. App…
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Falagon v. State, 167 So. 2d 62 (Fla. 2d DCA 1964)…ttack upon a conviction being served, which would traditionally be urged by said writ, should be urged under Criminal Procedure Rule 1. See Grant v. State, Fla.App.1964, 166 So. 2d 503, opinion filed July 17, 1964 and Solitro v. State, Fla.App.1964, 166 So. 2d 474, opinion filed July 22, 1964. Prior to the adoption of Criminal Procedure Rule No. 1 the relief here sought was available through habeas corpus proceedings. Normally habeas corpus will not be entertained where a prisoner held under two sentences at…
Authorities Cited
- Ex parte Welles, 53 So. 2d 708 (Fla. 1951)
- Hulan Grant v. State, 166 So. 2d 503 (Fla. 2d DCA 1964)
- Solitro v. State, 165 So. 2d 223 (Fla. 2d DCA 1964)
- Tilghman v. State, 64 So. 2d 555 (Fla. 1953)