J. E. ALBRITTON, AS SHERIFF OF DESOTO COUNTY, FLORIDA,
v.
ELVERON HOYT
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The court held that the information did not wholly fail to charge an offense, and thus habeas corpus was not the proper remedy.
Petitioner was convicted of operating a motor vehicle without a 1942 Florida license plate. He sought habeas corpus relief, challenging the sufficienc…
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This is an appeal from an order discharging petitioner o'n habeas corpus. The only question is whether the information wholly failed to charge an offense.
The charging part reads:
“. . . that Elveron Hoyt late of the County and State aforesaid, on the 20th day of July, A. D. 1942, then and there in the County of DeSoto and State of Florida, being employed in the State of Florida did operate upon a highway , of the State of Florida located in the County of DeSoto and State of Florida a motor vehicle, namely, an automobile without having displayed thereon and affixed thereto a 1942 Florida License plate . . .”
Section 320.35, Florida Statutes 1941, prohibits the operation of a motor vehicle without having the proper license plate. Section 320.38 requires a non resident operator to procure a Florida license also when he accepts employment in Florida. The sufficiency of the information was challenged by a motion. No appeal was prosecuted from the judgment of conviction. It is evident that petitioner is seeking to substitute this procedure for an orderly appeal. Section 140 of the Criminal Procedure Act was before us for construction in Jones v. Cook, 146 Fla. 253, 200 So. 856. Upon authority of the latter case the judgment herein is reversed with directions to remand petitioner to custody.
BUFORD, C. J., TERRELL and BROWN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Stack, 33 Fla. Supp. 64 (Broward Cty. Cir. Ct. 1969)…, 9 So. 2d 807. The state argues that where the sufficiency of an information is challenged by motion and no appeal is taken from a judgment of conviction, habeas corpus cannot be used as a substitute for an orderly appeal. Albritton v. Hoyt, 1943, 152 Fla. 332, 11 So. 2d 474. In the instant case, the petitioners, albeit late in the proceedings, attempted to attack the sufficiency of the information, but they were not given the opportunity to do so and there is no ruling of the trial court in this regard w…
Authorities Cited
- Jones v. Cook, 146 Fla. 253 (Fla. 1941)