BOBBY LEE NORTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court quashed the appeal because the petition for a writ of habeas corpus failed to allege that the petitioner was in custody.
Appellant pleaded guilty to breaking and entering with intent to commit a felony and was sentenced to five years. The petition for habeas corpus alleg…
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ON MOTION TO QUASH
The State of Florida has filed its motion to quash the instant appeal from an order denying appellant’s petition for a writ of habeas corpus.
In 1958, appellant entered a plea of guilty to a charge of breaking and entering with intent to commit a felony, to wit, aggravated assault. Papers in the record on appeal indicate that the aggravated assault consisted of cutting a lady with a butcher knife inside the dwelling house broken into and entered by the appellant. At the time of the commission of this crime, appellant was a minor. He was sentenced to serve a term of five years in the state penitentiary.
The petition filed in the lower court alleges on its face that the sentence imposed upon appellant had been served at the time the petition was filed. Moreover, there is no allegation by the appellant in said petition that he was in any manner being held in custody at the time the petition was filed by reason of the sentence imposed upon him.
The State’s motion to quash is grounded upon the rule long adhered to in this jurisdiction that a habeas corpus action will not lie unless it affirmatively appears that the petitioner is in custody and is entitled to be released from such custody. We think the State’s motion is well taken.
- Accordingly, the appeal herein is quashed on the authority of State ex rel. Brown v. Cochran, 118 So.2d 5 (Fla.); Young v. State, 167 So.2d 622 (Fla.App. 1st 1964); Desrosiers v. State, 189 So.2d 834 (Fla.App. 1st 1966).
WIGGINTON, C. J., and CARROLL, DONALD K., and SPECTOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rafael v. Crews, 154 So. 3d 505 (Fla. 4th DCA 2015)…ntended to test the legality of the petitioner’s detention and to secure his or her release if it is determined that the detention is illegal.” Collins v. State, 859 So. 2d 1244, 1245 (Fla. 5th DCA 2003) (citations omitted); see also North v. State, 217 So. 2d 608, 609 (Fla. 1st DCA 1969) (“[A] habeas corpus action will not lie unless it affirmatively appears that the petitioner is in custody and is entitled to be released from such custody.”). However, “habeas corpus is not to be used for additional appeals…
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Walker v. Graham, 438 So. 2d 946 (Fla. 1st DCA 1983)…PER CURIAM. AFFIRMED. Cook v. Hanberry, 592 F. 2d 248 (5th Cir.), cert. denied, 442 U.S. 932, 99 S.Ct. 2866, 61 L.Ed.2d 301 (1979); North v. State, 217 So. 2d 608 (Fla. 1st DCA 1969). MILLS, SHIVERS and ZEHMER, JJ., concur.…
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Key v. State (Fla. 6th DCA 2026)
Authorities Cited
- Young v. State, 167 So. 2d 622 (Fla. 1st DCA 1964)
- Desrosiers v. State, 189 So. 2d 834 (Fla. 1st DCA 1966)
- State of Fla. ex rel. Bobby A. Brown v. Cochran, 118 So. 2d 5 (Fla. 1960)