RICHARD M. JOHNSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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In this petition for rehearing, the Florida Supreme Court clarified that petitioner Johnson could challenge both a set of sentences imposed in 1958 and another set imposed in 1963, despite earlier incorrectly assuming he had already obtained relief on the 1958 sentences. The court held that Johnson may attack all challenged judgments and sentences through motions to vacate rather than habeas corpus.
Petitioner is entitled to attack both the 1958 and 1963 judgments and sentences through motions to vacate under Criminal Procedure Rule No. 1, and the court declines to issue a writ of habeas corpus as to the 1958 judgments, leaving that remedy available through the motion to vacate process.
“Under the rule adopted in our Revised Opinion in this cause, the petitioner is entitled to attack the judgments and sentences entered on December 3, 1958, as well as those entered on January 9, 1963.”
Establishes that petitioner may challenge both sets of sentences
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Join FLexlaw to unlock all legal intelligenceJohnson received six judgments and sentences on December 3, 1958. On March 14, 1961, he was released on parole from these sentences. While on parole, …
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By letter which we treat as a petition for rehearing, the petitioner, Richard M. Johnson, calls our attention to the fact that our Revised Opinion, 184 So.2d 161, filed in this cause on March 16, 1966 does not grant all the relief prayed for in his petition for habeas corpus.
In our Revised Opinion we dealt only with petitioner’s right to seek relief from ten of the eleven judgments and sentences laid upon him on January 9, 1963 by the Criminal Court of Record, Orange County. We did not discuss or decide petitioner’s right also to attack six judgments and sentences entered by the same court on December 3, 1958, because we incorrectly assumed that the petitioner had already been accorded this right by that opinion reported as Johnson v. State, Fla.App. 1964, 165 So.2d 187.
We now know that after the mandate in the last cited case went down, the trial court again denied petitioner’s motion to vacate the sentences entered against him on December 3, 1958, this time on the ground that petitioner was not then serving these sentences, but was in fact serving the sentenc*467es entered by the same court on January 9, 1963.
This curious circumstance, in which petitioner was serving the later sentences rather than those earlier imposed, is now easily explained and understood. On March 14, 1961, petitioner was released on parole from the sentences imposed on December 3, 1958. While on parole, petitioner committed the crimes for which he received the eleven judgments and sentences entered on January 9, 1963. Following these later convictions his parole from the first convictions was revoked “effective upon expiration of” the sentences awarded on January 9, 1963. The revocation of parole to become effective at a future date has been recognized by this court in Thomas v. Cochran, Fla.1961, 133 So.2d 74. Under this arrangement, the petitioner must serve the later sentences before he commences to serve the unsatisfied remainder of the earlier ones.
Under the rule adopted in our Revised Opinion in this cause, the petitioner is entitled to attack the judgments and sentences entered on December 3, 1958, as well as those entered on January 9, 1963. The earlier sentences were entered by the same court as those now being served and are to be served consecutively to them. If he were to prevail in his attack on all these sentences he would be entitled to release, subject to retrial if such be ordered by the trial court.
The effect of this opinion on rehearing, taken together with our Revised Opinion earlier entered is that the petitioner may, by motions to vacate under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix attack the six judgments and sentences entered on December 3, 1958, as well as all those entered on January 9, 1963 which remain unsatisfied. Because the petitioner may receive any relief to which he is entitled by such a motion we also decline to issue the writ of habeas corpus as to the judgments entered on December 3, 1958. This is, of course, without prejudice to petitioner’s right to attack such judgments by motion to vacate.
It is so ordered.
THORNAL, C. J., and THOMAS, CALDWELL and ERVIN, JJ., concur.
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Abron Scott v. Dugger, 604 So. 2d 465 (Fla. 1992)…performance cannot be deemed deficient for failing to raise every conceivable aspect of [*470] a claim. As to claim 2, we note that habe-as corpus is not a substitute for a motion for post-conviction relief pursuant to rule 3.850. Johnson v. State, 185 So. 2d 466 (Fla.1966), overruled on other grounds, Brumit v. Wainwright, 290 So. 2d 39 (Fla.1973). Claim 2 was properly raised in Scott’s 3.850 motion; thus, habeas relief is denied. Accordingly, we find that the petitioner is not entitled to relief on any of…
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State v. Wooden, 246 So. 2d 755 (Fla. 1971)…ropriate District Court may now be raised in the trial court which entered judgment and sentence; if an evi-dentiary hearing is necessary, it is a simple matter for a trial judge to provide one. Johnson v. State, 184 So. 2d 161 (Fla.1966), rehearing 185 So. 2d 466 (1966). In view of the acknowledged purpose of Rule 1.850 to facilitate factual determinations, it will be supposed that therein lies the distinction between proceedings under the Rule and petitions for habeas corpus. But such is not the case. On p…
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Brumit v. Louie L. Wainwright, 290 So. 2d 39 (Fla. 1973)…ve previously approved of parole revocations effective upon the expiration of sentence for an unrelated offense in such cases as Simmons v. State, 217 So. 2d 343 (Fla. App.2d 1969); Duchein v. Cochran, 127 So. 2d 97 (Fla.1961), and Johnson v. State, 185 So. 2d 466 (Fla.1966). We have reconsidered the rule of those cases in light of our decisions in Law and Adams, and we today overrule those cases to the extent that they allow parole revocation to be made effective upon the completion of a sentence imposed for…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The State of Fla. on the relation of the Borden Co. v. Langley, 184 So. 2d 161 (Fla. 1966)
- Thomas v. Cochran, 133 So. 2d 74 (Fla. 1961)
- Johnson v. State, 165 So. 2d 187 (Fla. 2d DCA 1964)