STATE OF FLORIDA EX REL. JOHN THOMAS CALLAHAN, JR., A/K/A LEONARD JOHN HEMMERLING, PETITIONER,
v.
ALLEN B. MICHELL, SHERIFF OF BROWARD COUNTY, FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court denied a petition for certiorari challenging a District Court of Appeal decision in a habeas corpus case, holding that Section 79.11, F.S.A. (an 1879 statute requiring judicial consent for appeals) is obsolete and has been entirely superseded by the 1956 amendment to Article V of the Florida Constitution, which provides a constitutional right to appeal.
The petition for certiorari is denied. Section 79.11, F.S.A. has been fully superseded by Sections 4(2) and 5(3) of Article V of the Florida Constitution and the Florida Appellate Rules, and is no longer applicable to determine the right to appeal from final judgments.
“Section 79.11, F.S.A. neither in its present text, nor at any previous time with different verbiage, has had any application to appeals or right of appeal since the effective date of the 1956 amendment of Article V of the Constitution”
Establishes that the statute is inapplicable due to the constitutional amendment
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePetitioner Callahan sought certiorari review of a District Court of Appeal decision affirming a habeas corpus judgment. The Sheriff had appealed the o…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Habeas Corpus Proceedings cases and more on FLexlaw
This matter is before this Court upon a petition for certiorari to review the decision in the appeal to the District Court of Appeal, Second District, from a final judgment in habeas corpus as reported in Michell, as Sheriff v. State ex rel. Callahan, Jr., Fla. App.1963, 154 So.2d 701. We find the ground of the petition without merit and deny it.
The ground of petition for certiorari is as follows:
“The respondent Sheriff appealed to the District Court, Second District, from the habeas corpus proceedings without first obtaining the consent of the Judge of the Circuit Court who issued the Order appealed from — or any Judge of the said Fifteenth Judicial Circuit or any Appellant Court of Justices as required by § 79.11, Florida Statutes Annotated.”
It appears that this ground was raised by the petitioner in the case appealed for the first time in his Petition for Rehearing as follows:
“That appellant failed to invoke the jurisdiction of the Court (of Appeal) pursuant to 79.11, F.S.A. in that the Circuit Court did not grant authority for the Appeal.”
The petition for rehearing was merely denied and petitioner now seeks certiorari *291review by reason of a sub silentio conflict “on the same point of law”, Section 4(2), Article V, of the Constitution, F.S.A., between the denial and the cases of State v. Quigg, 17 So.2d 698; Brister v. Brister, 29 So.2d 699; and Griffith v. State ex rel. Crownover, Fla.App.1963, 152 So.2d 818.
Section 79.11, F.S.A., is a remanent of the comprehensive habeas corpus procedure act of 1879, Chapter 3129, Laws of Florida, Section 10 of which act provided that:
“The judge hearing the cause, shall grant to any party aggrieved by the judgment a writ of error returnable to the next term of the supreme court, * He *»
Section 79.11, F.S.A., has been amended several times, and presently reads:
“The judge hearing the cause, or a justice of the supreme court, shall grant to any party or persons aggrieved by the judgment, including the state or any officer thereof, or any political subdivision of the state, an appeal in accordance with the Florida appellate rules.”
Since the rendition of the decisions relied on as in conflict with the decision sub judice, Article V, of the Constitution has been amended to provide that appeals from final judgments and decrees of the trial courts (and certain final orders or decrees of the county judges’ courts) “may be taken to the court of appeal of such district, as a matter of right" except those from which appeals may be taken direct to the supreme court or to a circuit court. Section 5(3), Article V, of the Constitution.
It thus appears that Section 79.11, F.S.A. neither in its present text, nor at any previous time with different verbiage, has had any application to appeals or right of appeal since the effective date of the 1956 amendment of Article V of the Constitution; and likewise decisions relating to Section 79.11, supra, rendered prior to the amendment are no longer to be applied as the law governing the right to appeal. Crownover v. Shannon, Fla.1964, 170 So.2d 299 (This date rendered). Section 79.11, supra, has been fully superseded by Sections 4(2) and 5(3), Article V of the Constitution, and Florida Appellate Rules, and it might as well be repealed.
The petition is denied.
DREW, C. J., and ROBERTS, THOR-NAL, O’CONNELL, CALDWELL and ERVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Nelson v. State, 208 So. 2d 506 (Fla. 4th DCA 1968)…armful error as to the defendant. McIntosh v. Commonwealth, Ky. 1963, 368 S.W. 2d 331. The defendant’s right to an appeal “as a matter of right” is granted by the Constitution, § 5(3), Article V, F.S.A., State ex rel. Callahan v. Michell, Fla.1964, 170 So. 2d 290, Crownover v. Shannon, Fla.1964, 170 So. 2d 299. Neither due process nor equal protection require an appeal or that an indigent convicted of crime shall have as of course the services of an attorney provided by the state to take an appeal. Such a r…
-
Crownover v. The Honorable George T. Shannon, 170 So. 2d 299 (Fla. 1964)…Supreme Court governing the manner, means, mode and method in the taking and prosecution of the appeal; and Section 79.11, Florida Statutes, is of no application under our present practice and procedure. State ex rel. Callahan v. Mitchell, Fla.1964, 170 So. 2d 290. Section 79.11, F.S.A. has been fully superseded by the Florida Appellate Rules, and Section 924.07(6), F.S.A., and Article V of the Constitution. The rule nisi is quashed and the writ of prohibition is denied. DREW, C. J., and ROBERTS, THOR-NAL,…
-
Matera v. Buchanan, 192 So. 2d 18 (Fla. 3d DCA 1966)…ne the same as the very truth of the case shall require.” 79.06(1) Fla.Stat. This is an appellate proceeding brought under the Florida Appellate Rules. Crownover v. Shannon, 1964, Fla., 170 So. 2d 299; State ex rel. Callahan v. Michell, 1964, Fla., 170 So. 2d 290. The order from which the appeal is taken comes here carrying with it a presumption of correctness. As in any other appeal, the burden is on the appellant to show reversible error. We have discussed certain procedural steps in Habeas Corpus because…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crownover v. The Honorable George T. Shannon, 170 So. 2d 299 (Fla. 1964)
- Michell v. State of Fla. ex rel. John Thomas Callahan, Jr., 154 So. 2d 701 (Fla. 2d DCA 1963)
- State v. MRS. J. M. (corinne) Brister, 158 Fla. 662 (Fla. 1947)
- Eoff v. State, 158 Fla. 642 (Fla. 1947)
- Griffith v. State of Fla. on the relation of William D. Crownover, 152 So. 2d 818 (Fla. 2d DCA 1963)