ROBERT H. HERRING
v.
STATE
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The Florida Supreme Court denied a petition to define the time a defendant must serve in prison, holding that it lacked jurisdiction after its mandate had gone down to the lower court and the defendant was not claiming unlawful restraint. The court suggested the defendant could pursue habeas corpus if he believed his liberty was unlawfully restrained.
No, the Florida Supreme Court does not have jurisdiction to define the period of time a defendant must serve in prison under these circumstances, as its jurisdiction is complete once the mandate has been issued and the defendant is not alleging unlawful restraint.
“This Court has completed the exercise of its jurisdiction and the petition presented does not revest jurisdiction here.”
Establishes the court's reasoning for lack of jurisdiction.
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Join FLexlaw to unlock all legal intelligenceThe petitioner was convicted of embezzlement and sentenced to one year in state prison. He remained in county jail custody for nearly nine months afte…
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This cause is before us on petition to define the period of ‘time which the defendant petitioner will be required to serve in the Florida State Prison.
The record shows petitioner was convicted of embezzlement in the Criminal Court of Record of Dade County and sentenced on the 29th day of July, 1937, to serve a period of one year in the State Prison. He sued out writ of error to the judgment, but did not give bail, and remained in custody under the judgment and sentence incarcerated in the county jail until the 11th day of April, 1938. Our mandate has gone down to the lower court and has been acted upon there. This Court has completed the exercise of its jurisdiction and the petition presented does not revest jurisdiction here. We cannot consider the petition as one for the writ of habeas corpus because there is no contention that petitioner is notv unlawfully deprived of his liberty.
The petition will be denied without prejudice to the petitioner to institute proceedings in habeas corpus, if and when he may be advised that he is being unlawfully restrained of his liberty. See Miller v. State, 15 Fla. 575.
So ordered.
Whitfield, Terrell, Brown and Chapman, J. J., concur.