THEODORE ROOSEVELT STEWART, PETITIONER,
v.
LOUIE L. WAINWRIGHT, RESPONDENT
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The Florida Supreme Court discharged a writ of habeas corpus for a petitioner serving a manslaughter sentence, finding that his claim regarding the violation of his rights as an unmarried minor had not been properly raised and considered in the lower courts. The court directed him to pursue this claim under the appropriate procedural rule.
No, the petitioner cannot bypass the procedural requirements. The alleged violation of Florida Statute § 932.38 has not been considered on a motion to vacate, and this issue is properly cognizable under Rule 1.850 of the Rules of Criminal Procedure.
“Respondent does not deny that petitioner's rights as a minor under F.S. § 932.38, F.S.A. may have been violated, but points out that this issue has not been raised on Motion to Vacate pursuant to Rule 1.850, 33 F.S.A.”
This quote highlights the respondent's acknowledgment of the potential issue while emphasizing the procedural defect.
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Join FLexlaw to unlock all legal intelligencePetitioner Theodore Roosevelt Stewart, an unmarried minor, was convicted of manslaughter and sentenced to fifteen years. He alleged that his parents w…
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This cause is before us on petition- for writ of habeas corpus seeking release of petitioner who is presently serving a fifteen-year sentence for manslaughter imposed April 5, 1967, in the Criminal Court of Record, Duval County.
Petitioner alleges that at the time of trial he was an unmarried minor; that neither of his parents were notified of the charge against him and did not attend his trial. No appeal was taken from the conviction.
On the basis of the foregoing allegation we issued the writ. Respondent has filed a Return and Supplemental Return. Respondent does not deny that petitioner’s rights as a minor under F.S. § 932.38, F.S.A. may have been violated, but points out that this issue has not been raised on Motion to Vacate pursuant to Rule 1.850, 33 F.S.A. Petitioner filed a Motion" to Vacate on October 5, 1967, on other grounds. That motion was denied January 12, 1968, after evidentiary hearing. On appeal, the District Court affirmed.1
*411The record before us establishes that the alleged violation of F.S. § 932.38, F.S.A., requiring notice to the parents or guardian of an unmarried minor charged with an offense, has not been considered on Motion to Vacate. The issue is properly cognizable under Rule 1.850.
Accordingly, the writ of habeas corpus is discharged without prejudice to petitioner’s right to proceed under Rule 1.850, Rules of Criminal Procedure.
It is so ordered.
ERVIN, C. J., and ROBERTS, DREW, CARLTON and BOYD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bernie Ludwig v. State, 215 So. 2d 898 (Fla. 3d DCA 1968)
- Stewart v. State, 215 So. 2d 898 (Fla. 1st DCA 1968)