IRVIN HITSON, PETITIONER,
v.
NATHAN MAYO, AS PRISON CUSTODIAN OF THE STATE OF FLORIDA, RESPONDENT
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Petitioner Hitson sought habeas corpus relief, claiming his five-year sentence was void because it was imposed under the wrong criminal statute. The Florida Supreme Court held that the application was premature because the sentence was imposed to run consecutive to his existing sentence, and he failed to challenge the intervening sentence he was then serving.
The application for habeas corpus was premature and denied because Hitson does not challenge his intervening sentence then being served, and favorable resolution of his statutory challenge would not effect his release while that prior sentence remains.
“the judgment and five year sentence about which petitioner Complains was entered September 30,-1954 and provides that it should begin "at the expiration of sentence you are now-serving-.."”
Establishes that the challenged sentence was consecutive to an existing sentence
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Join FLexlaw to unlock all legal intelligenceHitson was sentenced to five years under Section 843.11, F.S.1951, though the information was drawn under Section 843.12. The trial court entered judg…
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DREW, Chief Justice.
.Petitioner,, Irvin Hitson, applied for writ of habeas Corpus on grounds that the judgment and five year sentence imposed upon him was void because imposed under Section 843.11, F.S.1951, F.S.A., whereas the information was drawn under Section 843.-12, F.S.1951, F.S.A. We issued the writ.
Respondent has filed a return alleging that the present detention of petitioner is under a judgment and five: year sentence of the Criminal Court of Record of Hills-borough County, entered March 16, 1953, and that serving of this sentence with gain time deducted ’ could not expire until February 23, 1957. Certified copy of the judgment, and, sentence wa.s attached to the re^ turn. , •
Because this return is uncontrovert-ed we accept the allegations as true in absence of evidence otherwise. Moat v. Mayo, Fla., 82 So. 2d 591. Moreover, the judgment and five year sentence about which petitioner Complains was entered September 30,-1954 and provides that it should begin "at the expiration of sentence you, are now-serving-..”
Petitioner does not complain of the intervening sentence which he is now serving. Therefore, even a favorable decision would not effect his release at this time. Under these circumstances, the application for habeas corpus is premature. Hall v. Mayo, Fla., - So. 2d -; Pope v. Huff, 73 App.D.C. 170, 117 F. 2d 779. See 39 C.J.S., Habeas Corpus, § 13, p. 443. The petitioner is remanded.
TERRELL, ROBERTS andTHORNAL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Tilghman v. Culver, 99 So. 2d 282 (Fla. 1957)…he judge’s act. Having concluded that the prisoner is lawfully in the custody of respondent, he cannot now, in these proceedings, question the validity of the five year sentence for contempt of court. Finch v. Mayo, supra; Hitson v. Mayo, Fla.1955, 82 So. 2d 591. In reaching this conclusion we express no views as to the validity of this unusually long sentence and expressly hold that this opinion and judgment is without prejudice to the defendant to question the contempt sentence at the proper time. The pe…
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Lewis v. State, 93 So. 2d 46 (Fla. 1956)…filed in this court January 19, 1955, rendered any question as to sufficiency of the indictment res adjudicata. The petition was argued and briefed in this court, the same questions were raised and will not be further considered. Moat v. Mayo, Fla., 82 So. 2d 591. Even if the indictment had been defective for failure to allege the crime of robbery, such defect can be taken advantage of only by motion to quash and any error committed assigned on appeal. Such defect would not render the indictment void or subj…
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Gorman v. Cochran, 127 So. 2d 667 (Fla. 1961)…ended that subsequent con [*668] victions for other offenses were illegal. Since he is presently lawfully detained, as herein determined, petitioner cannot at this time question any future detention under other convictions. Hitson v. Mayo, Fla.1955, 82 So. 2d 591. Accordingly, the writ heretofore issued should be, and hereby is, quashed, and the petitioner remanded to the custody of the respondent, without prejudice to bring habe-as corpus proceedings questioning his detention under the convictions complain…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. Huff, 117 F.2d 779 (D.C. Cir. 1941)
- Moat v. Mayo, 82 So. 2d 591 (Fla. 1955)