JOHN HENRY GAFFORD, PETITIONER,
v.
LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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John Henry Gafford sought habeas corpus relief from his state prison sentence, but the Florida Supreme Court denied the petition because he failed to exhaust his remedies under Criminal Procedure Rule #1 before seeking collateral relief.
A petitioner must exhaust remedies available under Criminal Procedure Rule #1, including appellate review of adverse orders under that rule, before seeking habeas corpus relief collaterally attacking a conviction. Because Gafford did not exhaust these remedies, his habeas corpus petition must be denied.
“Under the provisions of Criminal Procedure Rule '#1, we will not consider an application for a writ of habeas corpus collaterally attacking a judgment of conviction until the petitioner has exhausted his remedies under Criminal Procedure Rule '#1, including appropriate appellate review of any adverse orders entered under that rule.”
Establishes the exhaustion requirement that bars habeas corpus relief when petitioner has not exhausted Rule #1 remedies
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Join FLexlaw to unlock all legal intelligenceGafford was convicted of armed robbery on April 16, 1951, and placed on probation on May 31, 1951. His probation was revoked on November 6, 1958, and …
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We have for consideration an original petition for a writ of habeas corpus filed by John Henry Gafford seeking release from the State Prison.
It appears from the allegations of the petition that on April 16, 1951, Gafford was convicted of the crime of armed robbery. On May 31, 1951, he was placed on probation for a period of ten years. On November 6, 1958, it appears that the probation was revoked and Gafford was sentenced for the term of eight years in the State Prison.
On May 6, 1963, he filed a motion under Criminal Procedure Rule ;#1, F.S.A. ch. 924 Appendix, in the Court of Record of Escambia County. Relief was denied by the trial judge.
Gafford claims by his petition now here that he filed a notice of appeal to the District Court of Appeal. He concedes that a ■ public defender was subsequently appointed to represent him in the appellate court. His appeal was dismissed for lack of jurisdiction on September 4, 1963.
We have investigated the public records to learn that the notice of appeal to the District Court was not directed to the adverse ruling of the trial court on Gafford’s motion under Criminal Procedure Rule #1. *139On the other hand, the notice of appeal was addressed to the original judgment of conviction in 19S1 and was obviously filed years too late for review by that court. The notice of appeal was evidently filed by Gafford prior to his representation by the public defender. The public defender appeared in the District Court in opposition to the motion to dismiss the appeal. The order dismissing the appeal was for the obvious reason that the untimely notice of appeal conveyed no jurisdiction to the District Court.
Under the provisions of Criminal Procedure Rule ’#1, we will not consider an application for a writ of habeas corpus collaterally attacking a judgment of conviction until the petitioner has exhausted his remedies under Criminal Procedure Rule '#1, including appropriate appellate review of any adverse orders entered under that rule. Mitchell v. Wainwright, Fla., 15S So. 2d 868, opinion filed May 15, 1963.
Inasmuch as it is evident from the record that the petitioner has not exhausted the remedies available to him under Criminal' Procedure Rule #1, the instant petition for habeas corpus will have to be denied.
It is so ordered.
ROBERTS, Acting C. J., and THOR-NAL, O’CONNELL, CALDWELL and HOBSON (Ret.), JJ., concur.
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Zuniga v. State, 184 So. 2d 659 (Fla. 1st DCA 1966)…riate appellate review in a court of competent jurisdiction, has been exhausted. Holloway v. Wainwright, 160 So. 2d 116 (Fla.1963); Hillhouse v. State, 159 So. 2d 228 (Fla.1963); Brown v. Wainwright, 158 So. 2d 527 (Fla.1963); Gafford v. Wainwright, 157 So. 2d 138 (Fla.1963); Mitchell v. Wainwright, 155 So. 2d 868 (Fla.1963). In summary, the hearing pursuant to F.S. 909.12, F.S.A. is not subject to the strict rules of evidence or procedure governing a jury trial on the question of guilt or innocence; the inq…