Forbes v. Wainwright, 28831 Summary Calendar.
| Decision Date | 28 April 1970 |
| Docket Number | No. 28831 Summary Calendar.,28831 Summary Calendar. |
| Citation | 425 F.2d 724 |
| Parties | William J. FORBES, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William J. Forbes, pro se.
Arden Siegendorf, Harold Mendelow, Asst. Attys. Gen., Miami, Fla., for defendant-appellee.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F. 2d 804, Part I; and Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F.2d 526, Part I.
William J. Forbes was placed on probation after pleading guilty in a Florida court to two charges of breaking and entering. He was apprehended as a probation violator and sentenced on November 14, 1966, to concurrent five year terms. Near his mandatory release date under these sentences he sought and was denied habeas corpus relief in the court below. This appeal ensued. Before reaching the merits we must dispose of preliminary questions of mootness and timeliness of appeal.
As to the first, we conclude that Forbes has standing to maintain this appeal although he was released from the Florida State Prison to federal custody during the pendency of this appeal.1 He is still subject to "disabilities or burdens" which may flow from the two state convictions and has therefore a surviving substantial stake in attacking the judgments of conviction even though the sentences thereunder have expired. Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. Forbes has two previous federal felony convictions on his record and is presently confined under a sentence for the last one. Possible Carafas "disabilities or burdens" exist, for one example, in the possibility of Forbes' state convictions being added to his federal convictions for enhancement purposes in an habitual criminal proceeding under Fla.Stat.Ann. 775.10, or a similar statute of another jurisdiction.
The question of the appeal being time-barred is the first point argued in the respondent-appellee's brief. Rule 59, F.R.Civ.P., requires motions for new trial to be served not later than ten days after the entry of judgment. The lower court's order denying the petition for habeas was entered August 12, 1969, and a "Request for Rehearing" was apparently untimely filed by the petitioner fifteen days thereafter, on August 27. Nevertheless this "Request" was considered and ruled upon on September 12, 1969, by the trial judge. This was an appealable order. The record file date of the Notice of Appeal is October 13, thirty-one days thereafter, in the face of Rule 4(a), F.R.A.P.'s thirty-day limitation. Reference to the calendar shows that October 11 and 12, 1969, fell on Saturday and Sunday. We take notice that the district court Clerk's Office was closed on both dates. The filing of the notice on Monday, October...
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Messelt v. State of Ala., s. 78-2282
...(5th Cir. 1979); Tifford v. Wainwright, 592 F.2d 233 (5th Cir. 1979); Bryant v. Elliott, 472 F.2d 572 (5th Cir. 1973); Forbes v. Wainwright, 425 F.2d 724 (5th Cir. 1970); Davis v. Beto, 368 F.2d 999 (5th Cir. 1966), Cert. denied, 386 U.S. 1040, 87 S.Ct. 1498, 18 L.Ed.2d 608 (1967). From a s......
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Marple v. Manson, Civ. No. 15525.
...consequences" exception to the doctrine of mootness has been applied by the federal courts in various contexts. See Forbes v. Wainwright, 425 F.2d 724 (5th Cir. 1970) (possibility that petitioner's Florida convictions might be used in an habitual criminal proceeding in Florida or in another......
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Perry v. United States, 75-492-Civ-J-S.
...has been held applicable to habeas corpus proceedings. E. g., Flint v. Howard, 464 F.2d 1084, 1086 (1st Cir. 1972); Forbes v. Wainwright, 425 F.2d 724, 725 (5th Cir. 1970); Hunter v. Thomas, 173 F.2d 810, 812 (10th Cir. 1949). 7 J. Moore, Federal Practice ¶ 81.05, at 60 (2d Ed.1948). Subsec......
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Noll v. People of State of Neb., 76--1079
...district court, the petitioner was required to exhaust his California state remedies. 3 The Jackson dicta relied upon Forbes v. Wainwright, 425 F.2d 724 (5th Cir. 1970), which in turn relied upon Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Forbes and Carafas see......