RALPH LEE MCGUIRE, PETITIONER,
v.
H. G. COCHRAN, JR., DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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The Florida Supreme Court discharged a writ of habeas corpus, holding that the petitioner's claims of an illegal sentence should be raised through a direct appeal, not habeas corpus, as the time for appeal had not yet expired. The court emphasized that habeas corpus is not a substitute for an appeal.
No, a writ of habeas corpus cannot be used as a substitute for a direct appeal to challenge an allegedly illegal sentence when the time for appeal has not expired.
“The errors alleged in the trial and ultimate sentence are matters which may properly be raised by appeal.”
Establishes that the petitioner's claims are cognizable on direct appeal.
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Join FLexlaw to unlock all legal intelligencePetitioner Ralph Lee McGuire filed a petition for a writ of habeas corpus, alleging he was incarcerated under an illegal sentence imposed on October 4…
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By petition for a writ of habeas corpus McGuire alleges that he is incarcerated in the State prison pursuant to an alleged illegal sentence imposed October 4, 1961. The-errors alleged in the trial and ultimate sentence are matters which may properly be raised by appeal. The time for appeal has not yet expired. Section 924.-09, Florida Statutes, F.S.A., and Rule 6.2, Florida Appellate Rules, 31 F.S.A. A ha-beas corpus proceeding cannot be employed as a substitute for relief by appeal. A certified copy of the sentence attached to the return of the respondent supports the correctness of the allegations of the petition regarding the date of the imposition of sentence. The writ is, therefore, discharged and the petitioner is remanded to the custody of the respondent but without prejudice to any rights which the petitioner may have to present by appeal to the proper court the alleged errors relied upon in the petition.
It is so ordered.
ROBERTS, C. J., and HOBSON, DREW, THORNAL and O’CONNELL, JJ-, concur.
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Michell v. State of Fla. ex rel. John Thomas Callahan, Jr., 154 So. 2d 701 (Fla. 2d DCA 1963)…t Court. We decline to discuss the question of the procedural propriety of the Writ of Habeas Corpus under these circumstances, since the appeal time has now expired and the one-year sentence has been executed. But cf. McGuire v. Cochran, Fla.1961, 135 So. 2d 226. The ultimate question raised by this appeal may be stated as follows: Was it proper for the trial court, after vacating upon its own motion the prior judgment [*703] and sentence for failure of compliance with § 932.38, Florida Statutes, F.S.A. to…
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Hall v. Fla. State Dep't OF Pub. Welf. & Anne Curtwright, 226 So. 2d 39 (Fla. 4th DCA 1969)…ection 39.14, F.S.A., details the procedure for taking appeals from Juvenile Court proceedings. Also see State ex rel. Singleton v. Walters, Fla.1963, 158 So. 2d 513, upholding appellate procedure in Juvenile Courts. . McGuire v. Cochran, Fla.1961, 135 So. 2d 226; Hollingshead v. Wainwright, Fla. 1967, 194 So. 2d 577; Ex parte Aulday, 1933, 113 Fla. 70, 151 So. 388; Neel v. Mayo, 1937, 126 Fla. 869, 172 So. 84; Cooper v. Sinclair, Fla.1953, 66 So. 2d 702, cert. den. 340 U.S. 867, 74 S.Ct. 107; 98 L.Ed. 377.…
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Constantine Lantz v. State, 293 So. 2d 118 (Fla. 3d DCA 1974)…posed, and discharging the petitioner from his convictions in the municipal court. Upon this record, it affirmatively-appears that the circuit judge misconceived the office of a petition for writ of habeas corpus. See McGuire v. Cochran, Fla. 1961, 135 So. 2d 226; Buchanan v. State ex rel. Hunt, Fla.App.1965, 171 So. 2d 186. The petition for habeas corpus should have been dismissed at the time that the respondent, Dade County Department of Corrections, was dismissed. Accordingly, the final judgment is rever…
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