VOLNEY BROOKER, PETITIONER,
v.
NATHAN MAYO, AS PRISON CUSTODIAN OF THE STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court denied a habeas corpus petition, upholding a prisoner's conviction and sentence for withholding support and deserting his minor children. The court found the two offenses were distinct in time, distinguishing it from a prior case where consecutive sentences for a single act were overturned.
Yes, the petitioner can be sentenced to two consecutive one-year terms because the offenses of withholding support and desertion occurred at different times, making them distinct crimes.
“It appears that petitioner stands convicted of two different crimes separated by one year in time.”
Establishes the court's finding that the two offenses were distinct.
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Join FLexlaw to unlock all legal intelligencePetitioner Volney Brooker was convicted on two counts: unlawfully withholding support from his minor children from August 15, 1952, to November 25, 19…
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TERRELL, Justice.
Petitioner was tried and convicted on an information wherein the first count charged that he (petitioner) did unlawfully withhold support from his two minor children from August 15, 1952, to November 25, 1953. In the second count it was charged that petitioner did unlawfully desert his two minor children from August 15, 1953, to November 25, 1953. It accordingly appears from the record that the desertion took place one year after withholding support. He was sentenced to one year in the penitentiary on each count. He challenges the judgment so imposed by habeas corpus.
The facts are not clear but the rule is that petitioner must overcome the prima facie correctness of his imprisonment. Coleman v. State, ex rel. Race, 118 Fla. 201, 159 So. 504; State ex rel. Williams v. Coleman, 131 Fla. 872, 180 So. 360. Sufficiency of the evidence will not be tested by habeas corpus. White v. Penton, 92 Fla. 837, 110 So. 533. It appears that petitioner stands convicted of two different crimes separated by one year in time. This excludes him from the rule in Deal v. Mayo, Fla., 76 So. 2d 275, where the imposition of two one-year sentences arising from the same unlawful act was condemned.
It is accordingly our judgment that petitioner should be and he is hereby remanded to the custody of respondent
It is so ordered.
MATHEWS, C. J., and SEBRING and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hitson v. Mayo, 99 So. 2d 297 (Fla. 1957)…s order of sentence, and a failure to do so would make the sentence subject to reversal on appeal; but this is a habeas corpus proceeding, where the petitioner must overcome the prima facie correctness of his imprisonment, Brooker v. Mayo, Fla.1955, 77 So. 2d 854. Under the circumstances the petitioner has not been fundamentally prejudiced in his defense, or been rendered subject to double jeopardy. In denying this basis for relief we ■do so without prejudice to petitioner to show if he can that all of the…
Authorities Cited
- White v. Penton, 92 Fla. 837 (Fla. 1926)
- Coleman v. State, 118 Fla. 201 (Fla. 1935)
- State v. Coleman, 131 Fla. 872 (Fla. 1938)
- Deal v. Mayo, 76 So. 2d 275 (Fla. 1954)