D'alessandro v. Tippins

• Decision Date: 09 June 1931
• Parties: D'ALESSANDRO v. TIPPINS, Sheriff.
• Court: Florida Supreme Court

137 So. 231

102 Fla. 10

D'ALESSANDRO v. TIPPINS, Sheriff.

Florida Supreme Court

June 9, 1931

Rehearing Denied Oct. 24, 1931.

Error to Circuit Court, Lee County; Paul C. Albritton, Judge.

Habeas corpus proceeding by Angelo D'Alessandro against F. S Tippins, Sheriff. To review an adverse judgment, relator brings error.

Affirmed.

Syllabus by the Court.

SYLLABUS

Where judgment of record on writ of habeas corpus is entered and not reversed, section 5443, C. G. L. Florida, bars another habeas corpus for the same cause.

Where defendant upon conviction and sentence in the county court obtained a writ of habeas corpus from a circuit court, and upon a hearing of said writ defendant was remanded to the custody of the county court for resentence, and later obtained another writ of habeas corpus, and upon hearing was remanded to the custody of the sheriff, which latter judgment was declared valid by this court and remains in force section 5443, C. G. L. Florida, is applicable, and defendant is not at liberty to obtain another habeas corpus for the same cause.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for defendant in error.

OPINION

GRAY Circuit Judge.

The plaintiff in error (hereinafter called petitioner) was tried by a jury and found guilty of the offense of unlawful possession of intoxicating liquors in the county court of Lee county on the 24th day of May, 1926, and duly sentenced.

From the judgment of conviction in the county court of Lee county an appeal was prosecuted to the circuit court of the Twelfth judicial circuit and the judgment of conviction was affirmed in December, 1926. On the 10th day of December of the same year, petitioner began serving the sentence imposed upon him and continued serving his sentence until the 8th day of January, 1927, when petitioner obtained a writ of habeas corpus from the judge of the Nineteenth judicial circuit, and upon a hearing was remanded to the county court of Lee county on account of certain errors and imperfections in the judgment and sentence.

In pursuant of the order of the judge of the Nineteenth judicial circuit remanding petitioner, petitioner was resentenced on the 25th day of January, 1927.

On the 15th day of February, 1929, petitioner obtained another writ of habeas corpus; this writ from the judge of the Twelfth judicial circuit. The petitioner was again remanded to the custody of the sheriff of Lee county. Writ of error was taken to this court from the order of the judge of the circuit court remanding petitioner, and the order of the circuit judge of the Twelfth judicial circuit was affirmed by this court. In affirming the lower court this court said in the case of D'Alessandro v. Tippins, Sheriff, 98 Fla. 853, 124 So. 455, 456:

So far as the record discloses in this case, the verdict of the jury was correct, and the only error which existed, if any at all, was in the judgment or sentence originally entered, The petitioner, after serving one month approximately of the term imposed by the sentence, complained of such error. There was no error therefore in the cause being remanded for a proper judgment or sentence upon the verdict. See Roberts v. State, 30 Fla. 82, 11 So. 536; Wallace v. State, 41 Fla. 547, 26 So. 713; Ex parte Browne, 93 Fla. 332, 111 So. 518; Blackwelder v....