Buchanan v. State ex rel. Hunt, 64-206

• Decision Date: 19 January 1965
• Docket Number: No. 64-206,64-206
• Citation: 171 So.2d 186
• Parties: T. A. BUCHANAN, as Sheriff and Director of Public Safety, Metropolitan Dade County, Florida, Appellant, v. STATE of Florida ex rel. John S. HUNT, Appellee.
• Court: Florida District Court of Appeals

Page 186

171 So.2d 186

T. A. BUCHANAN, as Sheriff and Director of Public Safety, Metropolitan Dade County, Florida, Appellant, v. STATE of Florida ex rel. John S. HUNT, Appellee.

No. 64-206.

District Court of Appeal of Florida, Third District.

Jan. 19, 1965.

Rehearing Denied Feb. 17, 1965.

Earl Faircloth, Atty. Gen., Richard E. Gerstein, State Atty., and Joseph Durant, Asst. State Atty., for appellant.

Harry W. Prebish, Miami, for appellee.

Before CRROLL, HORTON and HENDRY, JJ.

CARROLL, Judge.

This is an appeal by the respondent below from a judgment of the circuit court in habeas corpus, discharging from custody a petitioner who was under prosecution in another court. The appellee John S. Hunt with others had been informed against for violation of the act relating to sale of securities, Chapter 517, Fla.Stat., F.S.A. They were charged separately with selling mortgages on unimproved property upon fraudulently representing them to be on improved property (a felony under § 517.31, Fla.Stat., F.S.A.), and together with conspiring to do so (a felony under § 833.04, Fla.Stat ., F.S.A.). Jurisdiction for prosecution of such felonies was in the criminal court of record of Dade County.

Hunt and others accused moved in the criminal court of record to quash the information on a number of grounds including contentions of insufficiency and that the acts alleged were exempted transactions under the statute. The criminal court of record denied the motion to quash. Prosecution in that court was interrupted by issuance of a writ of habeas corpus of the circuit court.

The petition for writ of habeas corpus did not challenge the validity of the statute under which Hunt was charged in the information, or contend that the information failed to allege a crime under the statute. The contention relied on in the petition was that the transactions involved were exempted under the statute. In addition, the petition revealed that a motion to quash the information had been made and denied in the criminal court of record, and attached a copy of that motion which showed it included the contention that the transactions were exempted. The respondent sheriff's answer to the habeas corpus writ recited the statutory violations for which petitioner was held, and averred the motion to quash the information had been made and denied in the criminal court of record.

The circuit court judgment in habeas corpus discharging the petitioner made no reference to petitioner's claim that his acts were exempted transactions under the statute, and the judgment was not based on that ground, but on the ground that the allegations in the information were insufficient and not such as would inform the accused of a specific offense with which he was charged. That ruling by the circuit court was erroneous because it went beyond the scope of inquiry on habeas corpus on application of one under prosecution for a criminal offense, which was limited to a determination of the validity of the statute under which Hunt was charged and as to whether the allegations of the information wholly failed to state any offense under the laws of the state of Florida. See Ex parte Prince, 27 Fla. 196, 9 So. 659; In re Robinson, 73 Fla. 1068, 75 So. 604, 606, L.R.A.1918B, 1148; Hepburn v. Chapman, 109 Fla. 133, 149 So. 196, 198-199; Taylor v. Chapman, 127 Fla. 401, 173 So. 143; State ex rel. Franc v. Henderson, Fla.1952, 57 So.2d 840, 841; State ex rel. Leonard v. Kelly, Fla.1957, 92 So.2d 172; Kelly v . State ex rel. Curry, Fla.1957, 92 So.2d 178; 15 Fla.Jur., Habeas Corpus, § 33. Thus, in Ex parte Prince, supra, the Supreme Court said (9 So. at 660):

'* * * [W]here an indictment has been found which, although subject to attack and overthrow upon demurrer, contains enough to show that an offense had been committed of which the court has jurisdiction, the party charged cannot be discharged on writ of habeas corpus, but will be remitted to the court in which the indictment is pending for such proceedings as the law may warrant. * * * The writ cannot be used as a substitute for a demurrer, a motion to quash, a writ of error, or an appeal or certiorari. * * *'

Appellate jurisdiction of the cause in the criminal court of record involving a felony was in the district court of appeal, and not in the circuit court. See Florida Constitution, Art. V, sections 5(3) and 6(3), F.S.A. The proceedings in the circuit court, which resulted in discharge of the petitioner, amounted to an appellate review and reversal of the interlocutory order of the criminal court of record denying the motion to quash to quash the information.

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