Hancock v. State, 80-777

• Citation: 386 So.2d 613
• Decision Date: 06 August 1980
• Docket Number: No. 80-777,80-777
• Parties: Helen Sapp HANCOCK, Petitioner, v. STATE of Florida, Respondent.
• Court: Court of Appeal of Florida (US)

Page 613

386 So.2d 613

Helen Sapp HANCOCK, Petitioner, v. STATE of Florida, Respondent.

No. 80-777.

District Court of Appeal of Florida, Fifth District.

Aug. 6, 1980.

J. Russell Hornsby, Orlando, for petitioner.

No appearance for respondent.

WRIT OF HABEAS CORPUS

FRANK D. UPCHURCH, Judge.

Petitioner, Helen Sapp Hancock, seeks writ of habeas corpus, or in the alternative moves this court to set bail pending completion of the pre-sentence investigation and appeal.

The state was directed to show cause why the petition should not be granted. The state, instead, moved to dismiss alleging that the state was not a proper party because petitioner was not in its custody but was in the custody of Rollin W. Zimmerman, Sheriff of Brevard County, Florida.

As a general rule, the person holding custody and in a position to produce the petitioner, physically, is the proper person to be named respondent in a habeas corpus action. Lantz v. State ex rel. Edes, 293 So.2d 118 (Fla. 3d DCA 1974); Clark v. State, 122 So.2d 807 (Fla. 3d DCA 1960). In Woods v. Cochran, 131 So.2d 5 (Fla.1961), the petition improperly designated a circuit judge as respondent. The petition was treated as though the proper respondent, the director of corrections, was named. The court stated:

(B)ecause of the fundamental nature of the rights involved in a petition for writ of habeas corpus this court will treat the petition as though it had properly named as respondent the person having custody of the petitioner.

This principle is applicable here and the petition will be treated as though Rollin W. Zimmerman, Sheriff of Brevard County had been properly named.

Petitioner posted bond resulting in her release after her arrest. After trial and a guilty verdict, the court ordered a pre-sentence investigation and remanded her to the custody of the sheriff. There has been no adjudication of guilt and judgment has not been entered. Petitioner asserts that she has no prior criminal record. The trial court denied petitioner's motion for bond pending pre-sentence investigation.

Article I, section 14 of the Florida Constitution, provides that until adjudged guilty, all persons charged with a crime are entitled to release on reasonable bail unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great. ¹ Therefore, the right to bail prior to trial of one accused of a non-capital crime is absolute. Taylor v. State, 388 So.2d 576 (Fla. 5th DCA 1980); Matera v. Buchanan, 192 So.2d 18 (Fla. 3d DCA 1966).

This constitutional right to bail may be forfeited where a defendant's conduct evinces a flagrant disregard of the court's authority or effort to evade its processes. See Ex Parte McDaniel, 86 Fla. 145, 97 So. 317 (1923). The use of the writ of habeas corpus to speedily determine whether an accused is entitled to bail before trial and conviction is proper to effectuate the right to bail provided in the constitution. McDaniel.

The constitution clearly states that the right to bail applies only prior to adjudication of guilt. Wells v. Wainwright, 260 So.2d 196 (Fla.1972). Until one has been adjudicated guilty, however, his right to be released on bail continues even after verdict, in all respects as before verdict. Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA 1975). Where one is denied bail solely because of a jury verdict of guilty, he is unlawfully deprived of his liberty when taken into custody. Id. In Andress, defendant was released on bail prior to trial and was subsequently found guilty following a jury trial. The trial judge withheld adjudication of guilt but ordered defendant be taken into custody...