T. A. BUCHANAN, AS SHERIFF OF DADE COUNTY, FLORIDA, APPELLANT,
v.
THE STATE OF FLORIDA EX REL. ELBERT O. SOWERWINE, APPELLEE
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In this extradition habeas corpus case, the Florida District Court of Appeal reversed a discharge order and held that an affidavit charging the appellee with child enticement under Montana law substantially charged a crime despite alleged defects, and that jurisdictional and custody questions should be resolved in the demanding state rather than in the habeas corpus proceeding.
The court held that the affidavit substantially charges a crime under Montana law despite being inartfully drawn, and that the discharge order should be reversed. The court concluded that questions regarding whether Lucille Sowerwine actually had lawful custody on the date of the alleged crime, as well as the validity of Montana divorce decrees, are matters appropriately raised as defenses in the demanding state rather than in extradition habeas corpus proceedings.
“The affidavit substantially charged the appellee with a crime against the laws of the State of Montana, although it may have been in-artfully drawn.”
Establishes the court's holding that the affidavit meets the sufficiency standard for extradition despite technical defects
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Join FLexlaw to unlock all legal intelligenceElbert O. Sowerwine was arrested on a Montana governor's rendition warrant for extradition. The affidavit, made by Lucille Sowerwine before a Montana …
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The appellant seeks reversal of an order •of discharge rendered in favor of the ap-pellee in a habeas corpus proceedings.
The appellee was arrested on a governor’s rendition warrant for extradition to the .State of Montana. Annexed to the demand ■of the Governor of Montana upon the Governor of Florida was an affidavit made "before a magistrate of the State of Montana by Lucille Sowerwine, dated October 11, 1963, in which the appellee was charged with the crime of enticing or taking away a child from the custody of the affiant, Lucille Sowerwine, on October 9, 1963.1 After hearing upon the petition for habeas corpus, the circuit court entered its order of discharge, finding (1) that the executive rendition warrant was insufficient under the laws and Constitution of the United States, and (2) that the charge contained in the affidavit was fatally defective and did not substantially charge a crime.
The order of discharge further concluded that since the affidavit upon which the extradition was premised alleged that Lucille Sowerwine on October 11, 1963, has custody that it did not follow that she had custody on the date that it is charged the crime was committed, to-wit: October 9, 1963.
We have examined the affidavit upon which the extradition was premised and conclude that it substantially charges a crime under the applicable laws of the State of Montana and that the order of discharge should be reversed.
Whether Lucille Sowerwine actually had lawful custody of the child in question on October 9, 1963, is a matter about which the appellee can inquire more appropriately in the demanding state. The affidavit substantially charged the appellee with a crime against the laws of the State of Montana, although it may have been in-artfully drawn.2 See State ex rel. Frady v. Allen, 83 Fla. 652, 92 So. 154, 157; Chase v. State, 93 Fla. 963, 113 So. 103, 107, 54 A.L.R. 271. The appellee also contends that two divorce decrees were rendered in *566the State of Montana in favor of his ex-wife, Lucille Sowerwine, granting her custody of the minor child in question, hut that the same were premised upon service of process that was invalid and ineffective, thereby rendering the decrees invalid. This argument points toward the inevitable conclusion that if the decrees were invalid then the appellee, being the natural father of the child, could not be guilty of a crime under the Montana statute. This argument does not require any analysis by us for the simple reason that it is the type of argument which can and should be urged before the tribunal of the demanding state as a defense to the criminal action. It goes to the question of the guilt or innocence of the appellee rather than the sufficiency of the charge made in the affidavit. See Trent v. McLeod, 131 Fla. 617, 179 So. 906.
Concluding as we have that the order of discharge was premised upon an erroneous legal conclusion, the same should be and is hereby reversed with directions to remand the appellee to the custody of the appellant.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stack v. State of Fla. ex rel. Robert Ebbole, 284 So. 2d 472 (Fla. 4th DCA 1973)…state from which he has fled. See, also, Munsey v. Clough, supra, [196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515].” (Emphasis added.) See also State ex rel. Dyer v. Wilson, Fla.App.1972, 260 So. 2d 241; Buchanan v. State ex rel. Sowerwine, Fla.App.1965, 171 So. 2d 564. The affidavit or complaint in the case sub judice contains sufficient allegations of such nature as to substantially charge ap-pellee with a crime against the laws of the demanding state. Cossette v. State, Fla.App.1969, 221 So. 2d 427. The appell…
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State ex rel. Sowerwine v. Buchanan, 177 So. 2d 483 (Fla. 1965)…Certiorari denied without opinion. 171 So. 2d 564…
Authorities Cited
- Chase v. The State of Fla. ex rel. H. L. Burch, 93 Fla. 963 (Fla. 1927)
- Harrison S. Trent v. McLeod, 131 Fla. 617 (Fla. 1938)
- State v. Allen, 83 Fla. 652 (Fla. 1922)