JAMES E. HIGGINBOTHAM, PETITIONER,
v.
STATE OF FLORIDA AND LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, STATE OF FLORIDA, RESPONDENTS
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Habeas corpus petition from an inmate seeking delayed appellate review of his criminal conviction was denied. The court clarified that the denial was based on procedural grounds regarding the availability of habeas corpus as a vehicle for delayed appellate review, not on the merits of the underlying appeal.
A petitioner may not use habeas corpus to obtain delayed appellate review under these circumstances. The petition for writ of habeas corpus is denied on procedural grounds rather than on the merits.
“Respondents now seek clarification of whether our decision was on the merits of the appeal or solely on the right of petitioner to utilize habeas corpus to obtain delayed appellate review.”
Establishes that the issue on clarification was procedural jurisdiction, not the merits of the underlying appeal.
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Join FLexlaw to unlock all legal intelligencePetitioner filed a timely appeal from a criminal judgment and sentence in Brevard County. His family retained counsel at their own expense for the app…
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Habeas corpus denied.
WALDEN, C. J., and CROSS and OWEN, JJ., concur.
ON PETITION FOR CLARIFICATION
PER CURIAM.
By a per curiam decision without opinion filed April 23, 1969, we denied the petition for writ of habeas corpus wherein petitioner had sought to obtain delayed appellate review under the authority of Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577. Respondents now seek clarification of whether our decision was on the merits of the appeal or solely on the right of petitioner to utilize habeas corpus to obtain delayed appellate review. In the instant case the request for clarification is valid because of the difference in effect which the basis of our decision may have on further rights of the parties.
The petitioner had filed a timely appeal from judgment and sentence imposed by the Criminal Court of Record of Brevard County and while such appeal was pending his family at their own expense had retained counsel to represent petitioner on the direct appeal. Subsequently, petitioner’s family learned that, in the event the appeal was successful and the judgment and sentence set aside, petitioner could be retried and, if found guilty, could be sentenced to a ten-year term rather than to the five-year term originally imposed. *770Petitioner’s family, without petitioner’s knowledge or consent, thereupon notified retained counsel to dismiss the appeal, which he did.
Upon the basis of the foregoing facts we concluded that the petitioner was not entitled to use habeas corpus as a means of obtaining delayed appellate review upon the authority of King v. Wainwright, 5 Cir. 1966, 368 F.2d 57; Pate v. Holman, 5 Cir. 1965, 341 F.2d 764; Schaeffer v. Wainwright, Fla.1969, 218 So.2d 442; Pierson v. State, Fla.App.1968, 214 So.2d 17; Kinsey v. State, Fla.App. 1965, 179 So.2d 108. We therefore denied the petition for writ of habeas corpus without consideration of the merits of the points presented for appellate review.
The petition for clarification is granted and our decision heretofore filed April 23, 1969, denying petition for writ of habeas corpus, is hereby clarified to show the basis upon which the petition for writ of habeas corpus is denied.
WALDEN, C. J., and CROSS and OWEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McMASTER v. Purdy, 274 So. 2d 564 (Fla. 3d DCA 1973)…PER CURIAM. Affirmed. See Higginbotham v. State, Fla.App.1969, 223 So. 2d 769; Hillhouse v. State, Fla.1963, 159 So. 2d 228; Hohenstein v. Wainwright, Fla.1963, 158 So. 2d 527; Ivey v. State, Fla.1963, 157 So. 2d 811.…
Authorities Cited
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Pate v. Holman, 341 F.2d 764 (5th Cir. 1965)
- King v. Louie L. Wainwright, 368 F.2d 57 (5th Cir. 1966)
- Pierson v. State, 214 So. 2d 17 (Fla. 1st DCA 1968)
- Hudson Kinsey v. State, 179 So. 2d 108 (Fla. 1st DCA 1965)
- Schaeffer v. Louie L. Wainwright, 218 So. 2d 442 (Fla. 1969)