JOHN MARTIN, JR.,
v.
STATE
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The Florida Supreme Court reviewed a criminal conviction from Dade County and found that the charging document (information) failed to allege the essential element of felonious intent required for the offense charged. Although the writ of error was filed outside the statutory time limit, the court issued a writ of habeas corpus because the conviction was unlawful and provided no legal basis for the defendant's imprisonment.
The court issued a writ of habeas corpus commanding the Sheriff to produce Martin's body. Although the statute limiting writs of error to within six months ordinarily applies, the court found that an unlawful conviction—one that does not charge the offense for which the defendant was sentenced—may be reviewed on habeas corpus grounds without regard to that time limit, and the defendant is entitled to release from unlawful restraint.
“It must be alleged and proved in such cases that the breaking and entering was with the intent to commit a felony.”
Establishes the essential element missing from the information—felonious intent is the gravamen of the offense charged.
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Join FLexlaw to unlock all legal intelligenceJohn Martin, Jr. was convicted in the Criminal Court of Record of Dade County, Florida and sentenced to twenty-five years imprisonment. The writ of er…
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This case brings for review a judgment of conviction in the Criminal Court of Record of Dade County, Florida.
The record shows that the writ of error was sued out more than six months after the entry of judgment. Therefore, under the provisions of Chapter 16302, Acts of 1933, the time had expired in which writ of error may be taken to a judgment of conviction.
We are not prepared to say, however, that this statute applies to a case where the judgment of conviction is void. But, in the present case, the judgment is not attacked upon the ground that it is void.
The charge appears to have been attempted under Section 5115 R. G. S., 7216 C. G. L., but the information entirely fails to charge the felonious intent which is the gravamen of the charge predicated on the provision of that section.
It must be alleged and proved in such cases that the breaking and entering was with the intent to commit a felony.
As the information does not charge the offense for which the defendant could be sentenced for the term of twenty-five (25) years, which was the judgment and sentence of the court in this case, the record shows that he is unlawfully restrained of his liberty.
It appears that the most that could be held to be charged against the defendant in the information is the offense of aggravated assault and, as he was not convicted of that offense, but of another and more serious offense he is entitled on the record to the issuance of a writ of habeas corpus. That the record of a conviction which is unlawful and con*145stitutes no legal basis for the imprisonment may be sufficient as a basis for the issuing of a writ of habeas corpus by this Court cannot be doubted. No formal application for habeas corpus is required. See Ex Parte Amos, 93 Fla. 5, 112 Sou. 289; Ex Parte Pells, 28 Fla. 67, 9 Sou. 833; Chase v. State, 93 Fla. 963, 113 Sou. 103.
Therefore, for the reasons stated, a writ of habeas corpus addressed to D. C. Coleman, Sheriff of Dade County, Florida, commanding him to produce the body of plaintiff in error, John Martin, Jr., is awarded, said writ to be returnable instanter, the writ to be served on D. C. Coleman, Sheriff, and a copy thereof to be served on Honorable Nathan Mayo, Commissioner of Agriculture of the State of Florida.
Further action on the writ of error will be stayed until further order of this Court.
So ordered.
Ellis P. J., and Terrell, J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Coleman v. State ex rel. Costello Jackson, 140 Fla. 772 (Fla. 1939)…de being unconstitutional or when the charge wholly fails to allege a crime. See Lewis v. Nelson, 62 Fla. 71, 56 So. 436; Cooper v. Lipscomb, [*775] 97 Fla. 668, 122 So. 5; State ex rel. Claire v. Coleman, 129 Fla. 880, 177 So. 288; Martin v. State, 123 Fla. 143, 166 So. 467; State ex rel. Cacciatore v. Drumright, 116 Fla. 496, 156 So. 721. We have carefully examined count one of the information to which the defendant entered a plea of guilty on arraignment in the Criminal Court of Record of Dade County, F…
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Crane v. Hayes, 253 So. 2d 435 (Fla. 1971)…abeas corpus is not subject to the niceties of technical pleading, and is sometimes issued upon very informal application. Chase v. State, 93 Fla. 963, 113 So. 103, 54 A.L.R. 271 (1927); Ex parte Amos, 112 So. 289, 93 Fla. 5 (1927); Martin v. State, 123 Fla. 143, 166 So. 467 (1936). An informal communication has been held to be a petition for writ of habeas corpus. Sneed v. Mayo, 66 So. 2d 865 (Fla.1953). And pleadings not styled habeas corpus have been given legal effect as such where justice and the circu…
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Aldine Taylor v. State, 138 Fla. 762 (Fla. 1939)…of one of such offenses is not essential to the conviction of the other offense, and vice versa. The gravamen of one offense is' the breaking and entry of a building with felonious intent (McNair v. State, 61 Fla. 35, 55 Sou. 401; Martin v. State, 123 Fla. 143, 166 Sou. 467); while the gravamen of the other is robbery from the person of another by putting such other in fear of death or great bodily harm (Montsdoca, et al., v. State, 84 Fla. 82, 93 Sou. 157). One may be guilty of breaking and entering a b…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ex Parte: Ernest Amos, 93 Fla. 5 (Fla. 1927)
- Chase v. The State of Fla. ex rel. H. L. Burch, 93 Fla. 963 (Fla. 1927)
- Ex parte Corpus, 28 Fla. 67 (Fla. 1891)