49 So.2d 794 (Fla. 1951), Sullivan v. State ex rel. McCrory

Citation:49 So.2d 794
Opinion Judge:Author: Roberts
Party Name:SULLIVAN, Sheriff, v. STATE ex rel. McCRORY.
Attorney:Richard W. Ervin, Atty. Gen., Murray Sams, Jr., Asst. Atty. Gen., Glenn C. Mincer, State Atty., Robert R. Taylor, County Solicitor, Miami, and V. B. Rutherford, Asst. County Solicitor, Miami Beach, for appellant.
Case Date:January 05, 1951
Court:Supreme Court of Florida

Page 794

49 So.2d 794 (Fla. 1951)

SULLIVAN, Sheriff,


STATE ex rel. McCRORY.

Supreme Court of Florida.

January 5, 1951

Page 795

Richard W. Ervin, Atty.Gen., Murray Sams, Jr., Asst. Atty. Gen., Glenn C. Mincer, State Atty., Robert R. Taylor, County Solicitor, Miami, and V. B. Rutherford, Asst. County Solicitor, Miami Beach, for appellant.

Hunt, Salley & Roman, Miami, for appellee.


The appellee was arrested on March 21, 1950, on a capias issued by the Criminal Court of Record of Dade County, Florida, to answer to an Information filed in said court by the County Solicitor and, on March 23, 1950, filed his Petition for Writ of Habeas Corpus in the Circuit Court of said county to obtain his release from custody. At the time of filing his petition, the appellee, who had been released from custody on the recognizance of his attorney, voluntarily submitted his person to the custody of the sheriff, temporarily and for the purpose of procuring the writ. The trial judge issued the writ forthwith, returnable to the same day, refusing the request of the state for time in which to prepare and file a return, and proceeded immediately to hear the testimony of witnesses (being the state's witnesses whose names were endorsed on the back of the Information). The taking of testimony was continued to and completed on the following day, March 24th, on which date the sheriff, appellant here, filed his return to the writ. On April 4th, the trial judge entered an order discharging the appellee from custody, on the sole ground that there was a total lack of evidence to sustain the charge. Appeal on behalf of the state has been perfected from such final judgment.

Prior to the taking of testimony, counsel for the appellant presented orally a motion to quash the petition, which may be treated as a motion to dismiss, see State ex rel. Rasco v. Rasco, 139 Fla. 349, 190 So. 510, on the grounds, among others, that the petition failed to allege any facts to warrant the issuance of the writ, and that the petitioner was out on bond and therefore not restrained of his liberty. This motion was denied, and the court's order denying such motion is here assigned as error. This assignment is well taken.

The petition filed by appellee alleged the fact of his arrest 'upon a purported capias or warrant of the Criminal Court of Record of Dade County predicated upon

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an Information filed by the County Solicitor for said County purporting to charge petitioner with the offense of counseling and procuring another to burn a boat of a third party with felonious and willful intent to defraud an insurer of said boat.' As grounds for his claim that he was unlawfully restrained of his liberty, appellee alleged that 'there is no evidence whatever to sustain the aforesaid charge in that (a) petitioner was not within the City of Miami, Dade County, or the State of Florida at the time of the alleged offense, and (b) petitioner did not counsel or procure, to any extent or in any respect, the burning of said boat, either for the purpose of defrauding an insurer or otherwise.' There were three other grounds alleged, all of which were without merit, and which will not be discussed in this opinion.

The statute, Section 79.01, Florida Statutes, same F.S.A., requires that, before the writ shall issue, the petitioner shall show 'probable cause to believe that he is detained in custody without lawful authority'. While the allegations of a petition will not be scrutinized too closely as to the form of expression, it is well settled that the writ should not be allowed where 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; Conley v. Cox, 8 Cir., 138 F.2d 786; Helms v. Humphrey, D. C., 63 F.Supp. 4; 25 Am.Jur., Habeas Corpus, Sec. 131, p. 238. The...

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