THEODORE R. ROBINSON, JR., PETITIONER,
v.
L. L. WAINWRIGHT, DIRECTOR, DIVISION OF ADULT CORRECTIONS, RESPONDENT
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Theodore Robinson filed a habeas corpus petition claiming he was subjected to double jeopardy by being tried twice for the same offense. The Florida District Court of Appeal rejected the petition because Robinson failed to raise the double jeopardy defense by motion to dismiss as required by procedural rules, thereby waiving it, and because the petition contained only conclusory allegations without supporting facts.
The court denied the habeas corpus petition because Robinson waived the double jeopardy defense by failing to raise it via motion to dismiss as required by CrPR 1.190(b)(1), and because the petition contained only bare conclusory allegations of double jeopardy without factual support.
[1] A petition for writ of habeas corpus must allege specific facts supporting the claim, not mere conclusions of law.
[2] Failure to raise the defense of former jeopardy by motion to dismiss prior to trial constitutes a waiver of that defense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“all defenses available to a defendant in a criminal case, other than a plea of not guilty, "shall be made only by motion to dismiss * * * whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense."”
Establishes the procedural requirement that double jeopardy defenses must be raised by motion to dismiss, not by habeas corpus petition.
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Join FLexlaw to unlock all legal intelligenceRobinson was convicted in Pinellas County Circuit Court on October 23, 1969, upon his plea of guilty to felonious possession of firearms and was sente…
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Petitioner Theodore R. Robinson, Jr., has filed in this Court his petition for writ of habeas corpus contending that he has been placed in double jeopardy in that he has been twice tried and prosecuted for the same offense. He alleges no dates, charge or charges involved, nor any Court or Courts wherein he may have been tried. This alone should have warranted, and even dictated, a denial of the writ, but in the spirit of overly-benevolent magnanimity (which we will try not to be guilty of again) we issued the writ.
Respondent Wainwright, as custodian of Robinson, has filed his response, stating that he holds Robinson in custody by virtue of a judgment and sentence entered against him by the Pinellas County Circuit Court on October 23, 1969, upon his plea of guilty to the crime of felonious possession of firearms, and for which he was sentenced to a term in the State Prison which he is now serving.
Respondent also calls our attention to the fact that the subject matter of Robinson’s petition can be availed of, if meritorious, under CrPR 1.850, 33 F.S.A., which is exclusive until exhausted, under the pronouncement of the Florida Supreme *66Court in Stewart v. Wainwright, Fla.1968, 206 So.2d 211. From the files of this Court it also appears that, at the time the habeas corpus petition was filed, there was pending here an appeal from an order of the Pinellas County Circuit Court denying such a motion filed in that Court by petitioner Robinson under said CrPR 1.850.
The appeal aforesaid, however, has now been determined adversely to Robinson in an opinion by Chief Judge Hobson, released here on September 16, 1970, by affirmance of the order appealed, and no petition for rehearing or other steps for further review have been filed or taken by him. See Robinson v. State of Florida, 239 So.2d 282, opinion filed September 16, 1970.
Under the holding of Stewart v. Wainwright, supra, we would be and are authorized to proceed to determine the merits of the instant habeas corpús proceeding. We therefore direct our attention to the merits of the instant case.
The sole reliance of Robinson in his petition for habeas corpus is that his release from custody is required because he was placed in double jeopardy when tried and convicted in the lower Court, apparently relying upon Waller v. State, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).
However, CrPR 1.190(b) (1), requires that all defenses available to a defendant in a criminal case, other than a plea of not guilty, “shall be made only by motion to dismiss * * * whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.” (Emphasis supplied).
The record before this Court, both in this habeas corpus proceeding and the former appeal in the CrPR 1.850 case aforesaid, fails to show that such motion was made by Robinson at any time subsequent to the filing of the information. Such failure amounts to a waiver of the defense of former jeopardy or double jeopardy, under the clear provision of CrPR 1.190 aforesaid.
In addition to the foregoing, the petition for habeas corpus averred only a bare conclusion of double jeopardy, alleging no facts whatever in support thereof. This Court can act only upon facts clearly alleged, not conclusions of the movant.
For the foregoing reasons, the petition for the writ is denied and this habeas corpus proceeding dismissed.
HOBSON, C. J., and McNULTY, J., concur.
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Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)…a. 5th DCA 1983); Wilson v. Eastmoore, 419 So. 2d 673 (Fla. 5th DCA 1982). .See Bell v. State, 262 So. 2d 244 (Fla. 4th DCA 1972), cert. denied, 265 So. 2d 50 (Fla.1972); Sitiero v. State, 248 So. 2d 219 (Fla. 4th DCA 1971); Robinson v. Wainwright, 240 So. 2d 65 (Fla. 2d DCA 1970); Robinson v. State, 239 So. 2d 282 (Fla. 2d DCA 1970).…1 / 2
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Suiero v. State, 248 So. 2d 219 (Fla. 4th DCA 1971)…e appellant’s failure to raise the issue of double jeopardy or collateral estoppel in the trial court below. Such failure amounts to a waiver of that defense. Robinson v. State, Fla.App.1970, 239 So. 2d 282, and Robinson v. Wainwright, Fla.App.1970, 240 So. 2d 65. We observe, however, that even had this defense been properly raised, based upon the weight of authority, the contentions of the appellant are without merit. State ex rel. Larkins v. Lewis, Fla.1951, 54 So. 2d 199; see also Kennick v. State, Fla.Ap…
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Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)…ater offense.1 However, the record before this court fails to show that the appellant timely moved against the information and he therefore waived his double jeopardy defense. Bell v. State, 262 So. 2d 244 (Fla.4th DCA 1972); Robinson v. Wainwright, 240 So. 2d 65 (Fla.2d DCA 1970); Robinson v. State, 239 So. 2d 282 (Fla.2d DCA 1970); Annot., 8 A.L.R.2d 285 (1949). Rule 3.190(b), Florida Rules of Criminal Procedure, provides that all defenses available by plea, other than a plea of not guilty, shall be made o…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Waller v. Florida, 397 U.S. 387 (U.S. 1970)
- Robinson v. State, 239 So. 2d 282 (Fla. 2d DCA 1970)
- AETNA Cas. & Sur. Co. OF Hartford v. Dessie E. Gresham, 206 So. 2d 211 (Fla. 1968)