Josey v. Galloway

• Decision Date: 26 September 1985
• Docket Number: No. AZ-233,AZ-233
• Citation: 10 Fla. L. Weekly 2238,482 So.2d 376
• Parties: 10 Fla. L. Weekly 2238 Jimmy JOSEY, Appellant, v. Drew GALLOWAY, as sheriff of Holmes County, Appellee.
• Court: Florida District Court of Appeals

Page 376

482 So.2d 376

10 Fla. L. Weekly 2238

Jimmy JOSEY, Appellant, v. Drew GALLOWAY, as sheriff of Holmes County, Appellee.

No. AZ-233.

District Court of Appeal of Florida First District.

Sept. 26, 1985.

W. Paul Thompson, DeFuniak Springs, for appellant.

Gregory C. Smith and Andrea Smith Hillyer, Asst. Attys. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Jimmy Josey appeals an order denying his petition for writ of habeas corpus and directing his return to the custody of the state of Alabama pursuant to properly issued extradition papers. The issue presented is whether Josey met his burden of overcoming the presumption of fugitiveness arising from the governor of Florida's warrant of arrest and whether the appellee produced corroborating evidence of fugitiveness sufficient to create a conflict in the evidence requiring denial of habeas corpus relief as a matter of law. We reverse and remand for further proceedings.

Appellant filed in the Circuit Court of Holmes County a petition for writ of habeas corpus alleging he was improperly being held in jail in the state of Florida by the appellee sheriff, that he had not been properly charged with any crime, and that he was in the state of Florida at all times on the date the crime charged in Alabama allegedly occurred. On February 9, 1984, the District Attorney for the Twentieth Judicial Circuit of Alabama filed a sworn application for extradition with the governor of Alabama alleging that Josey had been charged in the Henry County Circuit Court with the offense of second-degree theft, as shown by attached copies of an indictment and writ of arrest. The district attorney's application stated that the crime was committed on October 16, 1983, in the City of Headland, County of Henry, Alabama, and that Josey was present in the state of Alabama at the time of the commission of the crime and was a fugitive from justice in the state of Florida, in or near Bonifay. The indictment attached to the application for extradition charged in its entirety that:

Jimmy D. Josey, whose name is to the Grand Jury otherwise unknown, did knowingly obtain or exert unauthorized control over ten tons of nitrogen fertilizer, the property of Don Johnson, of the value of, to wit: $1500, with the intent to deprive the owner of said property, in violation of 13A-8-3 of the Code of Alabama. ¹

The indictment had been returned by the Alabama grand jury on January 31, 1984, and the writ of arrest issued by the state of Alabama on that same date. On March 8, 1984, the governor of Alabama issued a demand for extradition upon the governor of Florida representing that Josey had been charged by indictment with the crime of second-degree theft in Alabama, that Josey was personally present in Alabama at the time of the alleged offense, and that Josey had fled from Alabama and taken refuge in Florida. Certified copies of the indictment and the writ of arrest were attached to the demand. On March 26, 1984, a warrant of arrest was executed by the governor of Florida commanding the sheriff of Holmes County to arrest Jimmy Josey. There is no mention in the record of the date Josey was arrested by the sheriff.

On April 17, 1984, a hearing was held on Josey's petition for writ of habeas corpus. The state, on behalf of the sheriff, introduced the extradition documents in evidence and rested its case. These documents consisted of the district attorney's sworn application for extradition, the indictment, the writ of arrest, the demand from the governor of Alabama, and the warrant of arrest executed by the governor of Florida.

Appellant then introduced the testimony of seven witnesses, including himself and his wife, which, if believed, proved that appellant was not in Alabama on the alleged date. The evidence revealed that appellant, between March and May 1983, was a sales representative for Golden Plant Food Company, a business that manufactured fertilizer in Henry County, Alabama. Sometime between March and May 1983 appellant was in the vicinity of Headland attending a meeting with representatives of Golden Plant Food Company. According to petitioner, that is the last time he was in or near Headland. The testimony of an eyewitness reveals that the alleged theft occurred on October 16, 1983, when certain individuals purporting to be representatives of Golden Plant Food Company loaded fertilizer owned by Don Johnson onto a truck and drove away. This eyewitness testified that he knew Jimmy Josey and that Mr. Josey "was not one of the individuals there with the truck loading the fertilizer" (R. 37). Four witnesses testifying for appellant, three of whom were unrelated to Josey, stated they saw him in Bonifay during various parts of the day on October 16, 1983. This testimony accounted for petitioner's presence between 8:30 a.m. and 5:30 p.m. Petitioner and his wife testified that petitioner was in Bonifay during all hours of October 16.

At the close of Josey's case, counsel for Josey argued that he had presented competent, uncontradicted evidence that Josey was not in Alabama at the time of the alleged offense and that the petition for writ of habeas corpus should be granted. The state argued that Mr. Josey's evidence was not persuasive enough to overcome the presumption arising out of the extradition documents and carry his burden of proving that he was not in Alabama on the date of the crime. The state also relied on the district attorney's application as sworn proof that Josey was present in Alabama. Josey's attorney noted the district attorney's lack of personal knowledge of Josey's presence in the state. The court requested legal memoranda and took the petition under advisement. On May 4, 1984, the court denied the petition for writ of habeas corpus, concluding "there is no legal reason that would bar Alabama authorities from returning Jimmy Josey to that state to answer criminal charges named in the governor's rendition warrant." Josey has appealed this final order.

The power to extradite fugitives from justice derives directly from Article IV, Section 2, United States Constitution, and its implementing federal statute, 18 U.S.C.A. § 3182. Roberts v. Reilly, 116 U.S. 80, 94, 6 S.Ct. 291, 299, 29 L.Ed. 544 (1885). To implement this federal law, the state of Florida has adopted the Uniform Interstate Extradition Act. Ch. 941, pt. 1, Fla.Stat. (1983). Section 941.02 directs the governor of Florida "to have arrested and delivered up" to another state "any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state."

The power of the judiciary to issue writs of habeas corpus derives from English law and Article I, Section 9 of the United States Constitution, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Article V, Section 5(b) of the Florida Constitution. It is a state court's duty in habeas corpus proceedings challenging extradition to administer the federal law prescribed by Article IV, Section 2, United States Constitution, and 18 U.S.C.A. § 3182, as construed by the United States Supreme Court. South Carolina v. Bailey, 289 U.S. 412, 419-20, 53 S.Ct. 667, 670-71, 77 L.Ed. 1292 (1933). A habeas corpus proceeding challenging extradition involves a "federal question" of whether the accused is a fugitive from justice, and such question is controlled by the federal constitution and laws as interpreted by the United States Supreme Court. Id.; State v. Shelton, 30 Ala.App. 484, 8 So.2d 216, 218 (Ala.1942).

Interstate extradition is intended to be a summary and mandatory executive proceeding designed to enable each state to bring offenders to trial as swiftly as possible in the state where the alleged crime was committed. Michigan v. Doran, 439 U.S. 282, 287-88, 99 S.Ct. 530, 534-35, 58 L.Ed.2d 521 (1978). Section 3182 requires that the governor of the demanding state deliver to the governor of the asylum state a demand for extradition and an indictment found or affidavit made before a magistrate of the demanding state charging the accused with commission of a crime in the demanding state. See § 941.03, Fla.Stat. (1983). ² The governor of the asylum state must then determine, as a matter of law, whether the accused has been substantially charged with a crime in the demanding state and whether, as a matter of fact, upon such evidence as is satisfactory to him, the accused is a fugitive from justice. Munsey v. Clough, 196 U.S. 364, 372, 25 S.Ct. 282, 283, 49 L.Ed. 515 (1905). If the governor determines that extradition is proper, he issues a warrant of arrest directing the appropriate law enforcement officers of his state to arrest the accused. 18 U.S.C.A. § 3182; § 941.07, Fla.Stat. (1983); Marbles v. Creecy, 215 U.S. 63, 67, 30 S.Ct. 32, 33, 54 L.Ed. 92 (1909).

Once arrested and held as a fugitive from justice, the accused has a federal constitutional right to question the lawfulness of his arrest and custodial imprisonment by petitioning the circuit court for a writ of habeas corpus and showing upon competent evidence that he was not a figitive from justice of the demanding state. Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 109, 28 S.Ct. 58, 61, 52 L.Ed. 121 (1907); Roberts v. Reilly, 116 U.S. 80, 94-95, 6 S.Ct. 291, 299-300, 29 L.Ed. 544; Crumley v. Snead, 620 F.2d 481, 483 (5th Cir.1980). See section 941.10, Florida Statutes (1983). To be a fugitive from justice within the meaning of Article IV, Section 2, United States Constitution, and 18 U.S.C.A. § 3182, it is necessary that the accused have been in the demanding state when the crime was committed and that he thereafter fled that state and was found in another state. Appleyard v. Massachusetts, 203 U.S. 222, 231-32, 27 S.Ct. 122, 125-26, 51 L.Ed. 161 (1906). This is also true in the case of a proceeding under section 941.03, Florida Statutes (1983). In a habeas corpus proceeding challenging the governor's determination that extradition is proper, the...