Nottebaum v. Mayo, 12586.

• Decision Date: 28 March 1949
• Docket Number: No. 12586.,12586.
• Citation: 173 F.2d 574
• Parties: NOTTEBAUM v. MAYO.
• Court: U.S. Court of Appeals — Fifth Circuit

173 F.2d 574 (1949)

NOTTEBAUM v. MAYO.

No. 12586.

United States Court of Appeals Fifth Circuit.

March 28, 1949.

Frank R. Nottebaum, in pro. per.

Reeves Bowen, Asst. Atty. Gen. of Florida, for appellee.

Before SIBLEY, McCORD, and WALLER, Circuit Judges.

PER CURIAM.

The petitioner for habeas corpus was represented in his trial in the State court by counsel. At the conclusion of all the evidence the plea of not guilty was withdrawn and one of nolo contendere substituted and sentence of three years imprisonment in the penitentiary imposed. The maximum for the offense was five years. The complaint is that there was no indictment, but only an accusation, and that several months detention in jail awaiting trial was not deducted from the sentence. The Florida law does not require indictment in such cases and the Fifth Amendment of the Federal Constitution on the point applies only to federal prosecutions. As to jail confinement before trial, we know of no law requiring its allowance, nor can it be told that the judge in sentencing did not consider it, the sentence being for less than the maximum.

Judgment affirmed.