Ex Parte Aulday

Citation151 So. 388,113 Fla. 70
PartiesEx parte AULDAY.
Decision Date28 November 1933
CourtUnited States State Supreme Court of Florida

Rehearing Denied Dec. 13, 1933.

En Banc.

Original proceeding by Harry Aulday for writ of habeas corpus to secure release from custody under sentence by circuit judge.

Application denied.

On Petition for Rehearing.

COUNSEL

Frank Redd and R. H. House, both of Sarasota, and Marion B. Jennings, of Jacksonville, for petitioner.

OPINION

DAVIS Chief Justice.

This is an application for a writ of habeas corpus addressed to the Supreme Court. Petitioner's application is based upon specific allegations contained in his petition, from which it is gleaned that the sole basis for seeking the writ of habeas corpus is that the circuit judge who tried the petitioner and sentenced him to the penitentiary for larceny of a steer was disqualified, by reason of alleged prejudice, to act as the trial judge in the case. Exhibits attached to and made a part of the petition show that application to disqualify the circuit judge was made under section 4341 Comp. Gen. Laws, section 2674, Rev. Gen. St. The application was denied, the trial proceeded, and conviction of the defendant was had.

The rule is well settled that while habeas corpus is not in any respect a technical proceeding, and the petition for the writ is not required to be in any particular form for the writ of habeas corpus to issue, yet when petitioner sets forth his whole case on the face of his petition, and the case as set forth shows clearly no ground for the writ of habeas corpus to issue in the first instance, the writ itself will be denied, as a court should not issue a writ of habeas corpus which it affirmatively appears will be of no avail to petitioner if issued. State ex rel. Davis v. Hardie (Fla.) 146 So. 97.

The refusal of Judge Albritton to retire from the trial in accordance with proceedings instituted before him under the statute, providing for such retirement when a trial judge is challenged for alleged prejudice against the accused, is reviewable here on writ of error. But the decision of such judge on that question is not open to collateral attack even in cases where the trial judge's decision appears on its face to be clearly wrong, because made pursuant to an erroneous disregard of the statutory requirements in the premises under which he, as a judge, should have recused himself from further presiding.

It is well settled that habeas corpus cannot be used as a substitute for a writ of error. Carroll v. Merritt, 91 Fla. 893, 109 So. 630; Futch v. State, 101 Fla 328, 134 So. 791. Whether or not a judge is disqualified by reason of prejudice is a judicial question which can only be tried in a direct proceeding to which the judge is a party, or by a writ of error or appeal to directly review any judgment or decree that any such alleged disqualified judge may have rendered, after he was duly challenged on the ground of prejudice in due form of law. See Conn v. Chadwick, 17 Fla. 428; Ex parte Harris, 26 Fla. 77, 7 So. 1, 6 L. R. A. 713, 23 Am. St. Rep. 548; Bryan v. State, 41 Fla. 643, 26 So. 1022; Sewell v. Huffstetler, 81 Fla. 374, 87 So. 782. Habeas corpus is not a proper remedy to attack a criminal judgment where the judgment is not absolutely void, but voidable only, as in cases where the judge has been properly challenged, but has refused to retire from a case where his prejudice as a ground of objection to his judicially acting in it at the trial has been...

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4 cases
  • Hall v. Florida State Dept. of Public Welfare
    • United States
    • Court of Appeal of Florida (US)
    • July 25, 1969
    ...in Juvenile Courts.2 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. 346 U.S. 867, 74 S.Ct.......
  • Sullivan v. State ex rel. McCrory
    • United States
    • United States State Supreme Court of Florida
    • January 5, 1951
    ...the petition does not make a prima facie showing that the applicant is entitled to be discharged from custody. See ex parte Aulday, 113 Fla. 70, 151 So. 388; State ex rel. Davis v. Hardie, 108 Fla. 133, 437, 146 So. 97; Ex parte Tail, 145 Neb. 268, 16 N.W.2d 161, and cases there cited; Conl......
  • Aulday v. State
    • United States
    • United States State Supreme Court of Florida
    • March 31, 1936
    ...Court, Sarasota County; Paul C. Albritton, Judge. Harry Aulday was convicted of larceny, and he brings error. Reversed. See, also, 113 Fla. 70, 151 So. 388. R. H. Rouse and Frank Redd, both of Sarasota, and Marion B. Jennings, of Jacksonville, for plaintiff in error. Cary D. Landis, Atty. G......
  • Boley v. Pensacola Hardware Co.
    • United States
    • United States State Supreme Court of Florida
    • November 28, 1933

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