MILTON ALDERMAN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court granted habeas corpus relief to an inmate whose appeal was dismissed due to his inability to communicate with the public defender's office during an administrative transition. Rather than release the petitioner (who had a concurrent sentence), the Court allowed him to pursue relief through a post-conviction motion under Florida Criminal Procedure Rule 1 with newly appointed counsel.
While habeas corpus is ordinarily improper when the petitioner has an unattacked concurrent sentence that would prevent release, the Court granted relief without prejudice, allowing the petitioner to pursue his claims through a motion under Criminal Procedure Rule 1 addressed to the trial court, with a newly appointed public defender.
“the petitioner was effectively thwarted in his effort to obtain appellate review of his conviction in Volusia County on January 19, 1965. Admitted also is the fact that this resulted primarily, because of a lack of communication with the public defender's office, during a period of transition when the occupant of the office was being changed.”
Establishes the factual basis for granting exceptional relief despite the ordinarily improper nature of habeas corpus
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Join FLexlaw to unlock all legal intelligencePetitioner Milton Alderman was sentenced to four years by the Circuit Court of the Seventh Judicial Circuit. He attempted to appeal his conviction to …
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Petitioner is detained under a judgment and sentence for four years imposed by the Circuit Court of the Seventh Judicial Circuit. His appeal to the District Court of Appeal, First District, was dismissed sua sponte for having failed to comply with the Rules of Appellate Procedure in the prosecution of the appeal. By petition for writ of habeas corpus he contends, and the respondent agrees, that he has been thwarted in his efforts to prosecute his appeal in the District Court through petitioner’s ignorance and through his inability to communicate with the public defender of the Seventh Judicial Circuit during the change of office from one public defender to another.
Ordinarily habeas corpus would not be the proper remedy inasmuch as the return to the writ heretofore issued shows that petitioner is legally in custody under another sentence running concurrently which he has not attacked and consequently he would not be released, even though he prevailed, because of that sentence. Hollingshead v. Mayo (Fla.1955), 79 So.2d 774; Hitson v. Mayo (Fla.1955), 82 So.2d 591; Gorman v. Cochran (Fla.1961), 127 So.2d 667; Falagon v. State (Fla.App.1964), 167 So.2d 62.
It appears, however, from the concessions made by the return, that the petitioner was effectively thwarted in his effort to obtain appellate review of his conviction in Volusia County on January 19, 1965. Admitted also is the fact that this resulted primarily, because of a lack of communication with the public defender’s office, during a period of transition when the occupant of the office was being changed. Because of the peculiar nature of the circumstances the denial of habeas corpus shall be without prejudice to the privilege of the petitioner to present his claims for reversal of his aforesaid conviction by motion under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix addressed to the trial court. In any such proceeding the trial judge shall appoint a public defender to represent the petitioner, both in the trial court and in the proper appellate court, if petitioner desires such assistance. See State ex rel. Ervin v. Smith (Fla.1964), 160 So.2d 518.
It is so ordered.
DREW, O’CONNELL and CALDWELL, JJ., concur.
ERVIN, J., concurs specially.
(concurring specially).
I agree to the conclusion revealed in the above opinion. However, I think a defendant’s right to an appeal which he asserts in a petition for a writ of habeas corpus ought not to be denied solely because he is not then serving the judgment and sentence sought to be appealed. See Fretwell v. Wainwright (Fla.1966), 185 So.2d 701.
ERVIN, Justice
(concurring specially).
I agree to the conclusion revealed in the above opinion. However, I think a defendant’s right to an appeal which he asserts in a petition for a writ of habeas corpus ought not to be denied solely because he is not then serving the judgment and sentence sought to be appealed. See Fretwell v. Wainwright (Fla.1966), 185 So. 2d 701.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blunt v. State, 203 So. 2d 49 (Fla. 1st DCA 1967)…o counsel as a matter of course in postconviction proceedings and that the failure to provide him such counsel licenses him to plow the same field over at some future date. In support of this proposition, appellant relies on Alderman v. State, Fla., 188 So. 2d 803. Our examination of Aider-man does not convince us that it is supportive of appellant’s argument on this point. There it was held that where the Public Defender inadvertently thwarted efforts to perfect a direct appeal, Aider-man could present his a…
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Millard Keith v. State, 222 So. 2d 186 (Fla. 1969)…tion [*188] ary, State ex rel. Ervin v. Smith, 160 So. 2d 518 (Fla.1964), or by belatedly claimed trial defects rendered impotent for appellate review by state action or inaction. Cappetta v. Wainwright, 203 So. 2d 609 (Fla.1967); Alderman v. State, 188 So. 2d 803 (Fla.1966). The writ is discharged. It is so ordered. ROBERTS, Acting C. J., and DREW, CARLTON and ADKINS, JJ., concur.…
Authorities Cited
- State of Fla. ex rel. Richard W. Ervin v. Smith, 160 So. 2d 518 (Fla. 1964)
- Fretwell v. Louie L. Wainwright, 185 So. 2d 701 (Fla. 1966)
- Moat v. Mayo, 82 So. 2d 591 (Fla. 1955)
- Falagon v. State, 167 So. 2d 62 (Fla. 2d DCA 1964)
- Hitson v. Mayo, 82 So. 2d 591 (Fla. 1955)
- Gorman v. Cochran, 127 So. 2d 667 (Fla. 1961)
- Stover v. Stubbs, 79 So. 2d 774 (Fla. 1955)
- Cleveland Hollingshead v. Mayo, 79 So. 2d 774 (Fla. 1955)