DONALD DENNIS BARNES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Barnes appealed a denial of his petition for collateral relief filed under Criminal Procedure Rule No. 1. The court quashed the appeal because Barnes was not in custody under the judgments he sought to attack, a requirement for relief under the rule.
A prisoner may only file a petition under Criminal Procedure Rule No. 1 if he is actually in custody under the judgment and sentence he seeks to vacate. Because Barnes was in custody under a different sentence (from Hillsborough County) and sought to attack judgments imposed by a different court (Alachua County), he was not entitled to relief.
“the benefits conferred thereby are available only to a prisoner in custody under sentence of a court established by the Laws of Florida claiming to have 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”
States the jurisdictional requirement for Rule No. 1 relief—the prisoner must be in custody under the sentence being challenged
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarnes was serving a three-year prison sentence imposed on May 13, 1963, which would not expire until January 9, 1966. While in custody under that sen…
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This case is before the court on appellee’s motion to quash the appeal.
A review of the record affirmatively establishes that petition for relief filed by appellant in the trial court pursuant to the provisions of Criminal Procedure Rule No.
*5161 was for the purpose of assaulting judgments of'conviction and sentence rendered against appellant on June 26, 1964, for the offenses of escape and possession of a weapon by a state prisoner. At the time appellant’s petition was filed, he was serving a three-year prison sentence rendered against him on May 13, 1963, and which will not expire until January 9, 1966. From the foregoing it appears without question that appellant was not in custody under the judgments of conviction and sentence which he sought to have set aside by his petition for relief filed under Criminal Procedure Rule 1.
The foregoing rule provides that the benefits conferred thereby are available only to a prisoner in custody under sentence of a court established by the Laws of Florida claiming to have 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, and he may move the court which imposed the sentence to vacate, set aside or correct the sentence.1
The three-year sentence pursuant to which appellant was in custody of the Division of Corrections at the time he committed the offenses of escape and possession of a weapon was imposed by the Criminal Court of Record of Hillsborough County. The petition in the case sub judice was filed in the Circuit Court of Alachua County and seeks no relief against the Hillsborough County sentence pursuant to which appellant is in custody.
It has been repeatedly held that unless the prisoner is actually in custody of the Division of Corrections under the judgment and sentence which he seeks to have vacated and set aside by his petition filed pursuant to Criminal Procedure Rule No. 1, the petition will be denied.2 The proceeding in the lower court, as well as the appeal pending here, is frivolous and the motion to quash the appeal is accordingly granted.
WIGGINTON, Acting C. J., and CARROLL, DONALD K, and RAWLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Escue v. State, 192 So. 2d 524 (Fla. 2d DCA 1966)…n completely served, and that petitioner-appellant is currently in custody serving another separate and subsequent sentence. The point involved has been before the appellate courts of Florida on numerous occasions. In Barnes v. State, Fla.App.1965, 173 So. 2d 515, the 1st District Court held that Rule 1 was not available to a prisoner for relief from a sentence which he was not then serving but which was to be served upon termination of the sentence he was currently serving. In McCormick v. State, Fla.App.,…
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Pritchett v. State, 193 So. 2d 185 (Fla. 4th DCA 1966)…alm Beach County to run consecutively with the sentence previously imposed by the Circuit Court of the same county. [*186] The Court of Appeal of the First and Third District have denied relief under such circumstance. Barnes v. State, Fla.App.1965, 173 So. 2d 515; McCormick v. State, Fla.App.1964, 164 So. 2d 557. The Second District has held to the contrary on the premise that a court should consider the validity of a sentence imposed to run consecutiyely in that the prisoner is in reality being held under b…
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Johnson v. State, 184 So. 2d 161 (Fla. 1966)…Procedure No. 1, it appears that the district courts of appeal of the first and third districts have also held that the petitioner for relief under that rule must be actually serving the sentence sought to be attacked, Barnes v. State, Fla.App.1965, 173 So. 2d 515, McCormick v. State, Fla.App.1964, 164 So. 2d 557; Paul v. State, Fla.App.1964, 165 So. 2d 779; while the second district now holds to the contrary. Jones v. State, Fla. App.1965, 174 So. 2d 452. It is true that there is language in the portion of…
Authorities Cited
- Parker v. Ellis, 362 U.S. 574 (U.S. 1960)
- Frappied v. State, 163 So. 2d 502 (Fla. 2d DCA 1964)