State ex rel. Copeland v. Mayo
Decision Date | 01 March 1955 |
Citation | 78 So.2d 399 |
Parties | STATE of Florida ex rel. Charlie COPELAND, Jr., Petitioner, v. Nathan MAYO, Prison Custodian of the State of Florida, Respondent |
Court | Florida Supreme Court |
Releford McGriff and Ernest D. Jackson, Jacksonville, for petitioner.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
There has been filed a petition for a writ of habeas corpus where the petitioner attempts to question the legality of the judgment and sentence heretofore entered in this cause. From a careful study of the petition, no facts appear therein that have not heretofore been set at rest by the judgment of this court on appeal, which has now become final, and the sentence entered in the cause. See Copeland v. State, Fla., 76 So.2d 137. Therefore, the matters set forth in the petition are not now open for adjudication. See State ex rel. Johnson v. Mayo, Fla., 69 So.2d 307, certiorari denied Johnson v. Mayo, 347 U.S. 992, 74 S.Ct. 855, 98 L.Ed. 1125; Irvin v. Chapman, Fla., 75 So.2d 591, certiorari denied 75 S.Ct. 297; Washington v. Mayo, Fla., 77 So.2d 620.
The petition shows on its face that the petitioner is confined in custody awaiting the execution of the sentence of death under an indictment and prosecution brought under Section 794.01, F.S., F.S.A. He was convicted by a jury without recommendation for mercy. In an extraordinary motion for new trial the petitioner claimed that he could not be prosecuted under Section 794.01, F.S., F.S.A., and that the sentence of death was illegal because he could only be prosecuted and sentenced under Chapter 28158, Laws of Florida 1953, F.S.A. § 801.02 et seq., designated as amendments to the Child Molester Act. It was contended by the petitioner that under Chapter 28158, the sentence of a person convicted of rape of a female under 14 years of age should not exceed 25 years in the State Prison at Raiford, although a conviction on a charge of rape of a female over 14 years of age carried with it the sentence of death unless there was a recommendation for mercy.
In considering this extraordinary motion for a new trial, the Circuit Judge in the exercise of his discretion passed upon the identical question which the petitioner attempts to again litigate. After the Circuit Judge decided the question involved contrary to the contention of the petitioner, he appealed to this court. In his appeal to this court, among others, petitioner set forth the following assignments of error:
Almost the entire burden of the brief for the petitioner and oral argument at the bar of this court was concerning the questions now attempted to be relitigated.
In deciding the question now presented by appeal, this court said:
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State ex rel. Copeland v. Mayo
...the Circuit Court December 16, 1954, 76 So.2d 137. Petition for writ of habeas corpus was denied by the Supreme Court of Florida March 1, 1955, 78 So.2d 399. Certiorari to the Supreme Court of the United States was denied October 10, 1955, 350 U.S. 851, 76 S.Ct. 92. Petitioner alleges that ......