JAMES WILLIAM ERVIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion to quash an appeal as frivolous should be granted if the petitioner would not be entitled to release from custody even if their motion for post-conviction relief were granted.
The defendant received consecutive sentences for breaking and entering and receiving stolen property. The Criminal Court of Record denied his motion f…
The full statement of facts, procedural history, and disposition for this case are member content.
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ON MOTION TO QUASH
This matter is before the court on motion of the state to quash the appeal as frivolous.
The defendant was sentenced in the Circuit Court for Hendry County to serve a term for breaking and entering that will expire on March 17, 1967. He was sentenced to serve a term by the Criminal Court of Record for Palm Beach County upon conviction of receiving stolen property for a one-year term to begin on the expiration of his prior sentence from Hen-dry County, and with earned time he would be entitled to release on November 17, 1967.
The Criminal Court of Record for Palm Beach County denied his motion for post-conviction relief on the grounds that he was not at the present time serving the sentence for which relief was sought.
It has been held that relief could be granted where a person was serving consecutive terms even though he had not reached the stage in h,is sentence where he was serving under the actual sentence for which relief was sought on the theory that he was in custody under said term even though he could not be released until the completion of the prior sentence. Jones v. State, Fla.App.1965, 174 So.2d 452. It had been held to the contrary in Cummings v. State, Fla.App.1964, 166 So.2d 775, and in White v. State, Fla.App.1964, 165 So.2d 799. Both of these cases were overruled by Jones v. State, supra.
The Supreme Court in Johnson v. State, Fla.1966, 184 So.2d 161, held that a defendant serving eleven consecutive terms arising out of the same offense and subject to the same infirmity did not have to bring eleven separate actions for relief. However, in so holding it held that a defendant would not be entitled to relief under Criminal Procedure Rule 1, F.S.A. ch.. 924 Appendix, unless he was able to show that he will be entitled to release from custody if his motion is granted.
Inasmuch as the petitioner here would not be entitled to release even if his *376motion were granted we must grant the state’s motion to quash.
ANDREWS,-. Acting C. J., WALDEN, J., and CABOT, TED, Associate Judge, 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)…ly discharged from custody because the prior sentence and his current sentence were both illegal, either for the same or different reasons, Rule 1 would be available. Such was the rationale of the Johnson case. See also Ervin v. State, Fla.App.1966, 189 So. 2d 374, opinion filed July 25, 1966, which follows the Johnson case and also distinguishes Jones. Applying the' test of Johnson to the instant case, the State’s motion here must be granted, because petitioner’s motion for discharge . is directed to a sent…
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Foxworth v. State, 199 So. 2d 129 (Fla. 1st DCA 1967)…PER CURIAM: Affirmed. See Johnson v. State, 184 So. 2d 161 (Fla.1966); Ervin v. State, 189 So. 2d 374 (Fla.App. 4th, 1966). WIGGINTON, Acting C. J., and JOHNSON and SPECTOR, JJ., concur.…
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Buckalew v. State, 201 So. 2d 795 (Fla. 1st DCA 1967)…IAM. The briefs and the record on appeal having been read and given full consideration, and appellant having failed to demonstrate reversible error, the order of the lower court hereby appealed is affirmed. See [*796] Ervin v. State, (Fla.App.1966) 189 So. 2d 374; Johnson v. State, (Fla.1966) 184 So. 2d 161. WIGGINTON, C. J., and CARROLL, DONALD K., and RAWLS, JJ., concur.…
Authorities Cited
- The State of Fla. on the relation of the Borden Co. v. Langley, 184 So. 2d 161 (Fla. 1966)
- Jones v. State, 174 So. 2d 452 (Fla. 2d DCA 1965)
- White v. State, 165 So. 2d 799 (Fla. 2d DCA 1964)
- Maxwell Cummings v. State, 166 So. 2d 775 (Fla. 2d DCA 1964)