State ex rel. Miller v. Kelly

• Decision Date: 06 June 1956
• Citation: 88 So.2d 118
• Parties: STATE of Florida ex rel. Rose MILLER, Petitioner, v. Thomas J. KELLY, Sheriff, Dade County, Florida, as Custodian of the Dade County Jail, Respondent.
• Court: Florida Supreme Court

Page 118

88 So.2d 118

STATE of Florida ex rel. Rose MILLER, Petitioner, v. Thomas J. KELLY, Sheriff, Dade County, Florida, as Custodian of the Dade County Jail, Respondent.

Supreme Court of Florida, Special Division B.

June 6, 1956.

Ray Sandstrom, Lakeland, for petitioner.

Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., John D. Marsh, Dade County Solicitor and Glenn C. Mincer, Asst. Dade County Solicitor, Miami, for respondent.

CARROLL, Associate Justice.

In the exercise of original jurisdiction this court issued a writ of habeas corpus on the petition of the state on relation of one Rose Miller, who sought thereby to obtain release from the second six months of a one year jail sentence which she was serving.

At the outset we are confronted with a defense of res adjudicata asserted in the response, consisting of a contention that this action may not be brought because a judgment of remand continues in force rendered in an earlier habeas corpus action sued out by this relatrix which involved the same question or cause.

Section 79.10, F.S.1955, F.S.A., provides a judgment in habeas corpus 'shall be conclusive until reversed in the manner hereinafter provided for, and no person remanded by such judgment while the same continues in force shall be at liberty to obtain another habeas corpus for the same cause, * * *.' The right of appeal from such a judgment is secured by the next section, 79.11.

The record here shows that Rose Miller was tried in the Court of Crimes in Dade County on two counts contained in one information. On December 10, 1953, she was convicted on both counts. The two offenses were among those specified in Chapter 796, F.S.1953, F.S.A., relating to prostitution, being those set out in Section 796.07(2)(a) and (3)(c). For each of those offenses the statute provided penalties including imprisonment for not more than six months. Section 796.07(5).

The sentence imposed by the Court of Crimes was for one year. This single sentence necessarily covered both offenses, but there was no express direction by the court that the sentences for the two offenses (of six months maximum each) should be served consecutively. Section 921.16, F.S.1953, F.S.A., provided that where a person is charged and convicted on two or more counts originating in one information, as was the case here, 'the terms of imprisonment shall be served concurrently unless the court expressly directs that they or some of them be served consecutively.'

The judgment of the Court of Crimes was appealed to the Circuit Court, which affirmed. Relatrix here contends that the appeal did not involve the sentence, but that the appeal dealt only with questions as to the judgment. A petition for certiorari thereon to this court was dismissed.

Relatrix began serving her sentence on January 6, 1955. After serving six months of the sentence (less gain time earned) she filed a petition for habeas corpus in the Circuit Court. A present contention by relatrix that the Circuit Court habeas corpus did not involve the effort to avoid the balance of the sentence prompts close inspection of that petition, the main allegations of which were as follows:

'That on the 24th day of February, 1953, an Information was filed by the County Solicitor against the relator charging her with the violation of Chapter 796.07(1)(a), and (3)(c).

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