MILTON EDWARD FRETWELL, JR., PETITIONER,
v.
LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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The Florida Supreme Court discharged a petition for a writ of habeas corpus because the petitioner was attacking a consecutive sentence he had not yet begun to serve, and was currently serving a different sentence.
No, a petitioner cannot use a writ of habeas corpus to attack the validity of a consecutive sentence that he has not yet begun to serve.
“It now appears that petitioner is presently serving an indeterminate sentence of six months to five years for armed robbery imposed April 9, 1965, by the Circuit Court of Volusia County.”
Establishes the petitioner's current status and the sentence he is serving.
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Join FLexlaw to unlock all legal intelligenceThe petitioner sought a writ of habeas corpus to challenge a conviction and sentence for robbery imposed in Orange County. However, the petitioner was…
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This cause is before us on petition for writ of habeas corpus attacking petitioner’s conviction and sentence to forty years for robbery imposed on September IS, 1965, by the Criminal Court of Record of Orange County. We issued the writ and have considered the return of the Attorney General. It now appears that petitioner is presently serving an indeterminate sentence of six months to five years for armed robbery imposed April 9, 1965, by the Circuit Court of Volusia County.,
Petitioner does not question the sentence he is presently serving and is not entitled on habeas corpus to attack the validity of a consecutive sentence he has not yet begun to serve. Byers v. Cochran, 143 So.2d 319 (Fla.1962).
Accordingly petition for writ of habeas corpus is discharged.
THOMAS, ROBERTS, DREW and CALDWELL, JJ, concur.
THORNAL, C. J., agrees to judgment.
ERVIN, J., concurs specially with opin-' ion.
(concurring specially).
I agree to the judgment herein. However, I think the discharge of the writ of habeas corpus should not be based upon the fact the Petitioner is not serving the judgment and sentence sought to be reviewed; instead, the writ should be discharged because it does not appear Petitioner’s fundamental right of appeal was improperly denied, which is the primary issue submitted *702by the writ. Petitioner’s public-supplied counsel determined an appeal of the judgment of conviction sought to be reviewed here was frivolous. Subsequently the District Court of Appeal reviewed a transcript of the proceedings in the case and independently came to the same conclusion. It sua sponte quashed the appeal. See Carr v. State (Fla.App.2d, 1965), 180 So.2d 381; Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060, and Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 811.
When a petition for writ of habeas corpus or a Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix, motion raises the question whether an appeal was improperly denied it seems to me the question should be directly decided on the propriety of the denial without the necessity of the Petitioner having to wait until he is in custody under the sentence involved.
ERVIN, Justice
(concurring specially).
I agree to the judgment herein. However, I think the discharge of the writ of habeas corpus should not be based upon the fact the Petitioner is not serving the judgment and sentence sought to be reviewed; instead, the writ should be discharged because it does not appear Petitioner’s fundamental right of appeal was improperly denied, which is the primary issue submitted by the writ. Petitioner’s public-supplied counsel determined an appeal of the judgment of conviction sought to be reviewed here was frivolous. Subsequently the District Court of Appeal reviewed a transcript of the proceedings in the case and independently came to the same conclusion. It sua sponte quashed the appeal. See Carr v. State (Fla.App.2d, 1965), 180 So. 2d 381; Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060, and Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 811.
When a petition for writ of habeas corpus or a Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix, motion raises the question whether an appeal was improperly denied it seems to me the question should be directly decided on the propriety of the denial without the necessity of the Petitioner having to wait until he is in custody under the sentence involved.
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…en paroled. We held that “[a] prisoner serving consecutive sentences is ‘in custody’ under any one of [the sentences] for purposes of Rule 1.850, Florida Rules of Criminal Procedure.” Id. at 207. In so holding we receded from Fretwell v. Wainwright, 185 So. 2d 701 (Fla.1966), in which the Court had held that a defendant in custody for one crime could not attack a conviction for which he was not presently in custody. Subsequent to Lawson, the “in custody” requirement of the rule was held by the district court…
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Reuel Lawson v. State, 231 So. 2d 205 (Fla. 1970)…erly Criminal Procedure Rule One. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, overruling McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. See Keith v. State, 222 So. 2d 186 (Fla.1969). Our decision in Fretwell v. Wainwright, 185 So. 2d 701 (Fla.1966), which relied on the McNally concept is overruled. The orders of the trial court relating to this question were entered prior to May 20, 1968, the date of the Peyton decision and were correct until Peyton overruled Mc-Nally. Such are the…
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State v. The Honorable Paul Baker, 248 So. 2d 468 (Fla. 1971)…der the charge from which she seeks release, being out on bail, no longer appears to preclude her relief where a fundamental right to discharge is made to appear. Compare Lawson v. State, Fla., 231 So. 2d 205 overruling Fretwell v. Wainwright, Fla., 185 So. 2d 701. See also, 77 A.L.R.2d, page 1307, entitled “Right of one at large to writ of habeas corpus.” However, it does appear more appropriate and expeditious to transfer this case to a court below clearly having jurisdiction at this point for the reasons e…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Douglas v. California, 372 U.S. 353 (U.S. 1963)
- Ellis v. United States, 356 U.S. 674 (U.S. 1958)
- Carr v. State, 180 So. 2d 381 (Fla. 2d DCA 1965)
- Byers v. Cochran, 143 So. 2d 319 (Fla. 1962)