State ex rel. Wilson v. Culver
| Decision Date | 10 April 1959 |
| Citation | 110 So.2d 674 |
| Parties | STATE ex rel. David L. WILSON, Petitioner, v. R. O. CULVER, as State Prison Custodian, Respondent. |
| Court | Florida Supreme Court |
David L. Wilson, petitioner in pro. per.
Richard W. Ervin, Atty. Gen., and Eugene P. Spellman, Asst. Atty. Gen., for respondent.
This cause is before the court on the respondent's return to a writ of habeas corpus heretofore issued by this court upon the showing made by petitioner in his petition for the writ.
By his return to the writ and photostated copies of the official records of the trial court appended thereto, the respondent has made it appear that the petitioner is presently serving a term of two years imposed upon him for the substantive offense of escape, as denounced by § 944.40, Fla.Stat.1957, F.S.A. [enacted in 1955 as Ch 29949, Acts of 1955, and appearing in Fla.Stat.1955 as § 954.30]. As shown by the official records, the petitioner was informed against on August 27, 1958, for the substantive offense of escape from the county jail on June 21, 1958, while lawfully confined therein under a warrant issued April 17, 1958, by Judge A. J. Hayward, Jr., charging him with the crime of robbery, a felony under the laws of this state. The information further alleged that the petitioner 'having thereupon been committed to the Circuit Court of Sixth Judicial Circuit on April 23, 1958, after entering plea of not guilty in the committing magistrate's court and by reason of said warrant and commitment was then and there confined, upon failure to give bond, in the County Jail of Pasco County at Dade City, Florida, did then and there feloniously escape from such confinement.'
In Melton v. Culver, Fla.1958, 107 So.2d 378, 380, this court said that for an attempted escape to constitute a felony, 'it must be alleged and proved that the prisoner was incarcerated or confined pursuant to a felony charge or conviction,' and that the information or indictment charging an escape 'must reflect the legality of the custody at the time the escape was committed and the nature of the confinement under which he was being held.' The information filed against petitioner in the instant case was sufficient to charge a felonious escape under the rule of Melton v. Culver, supra.
The entries in the official record of petitioner's trial on the escape charge show that petitioner plead guilty to the charge; that he was advised of his constitutional rights; and that 'the court having informed the defendant of the accusation against him and having heard the evidence adduced before him, adjudged the said defendant guilty of the above charge * * *.' It is well settled that entries contained in the record proper of the trial court import verity and will be presumed to be true and valid as against a collateral attack in a habeas corpus proceeding. State ex rel. Grebstein v. Lehman, 100 Fla. 481, 129 So. 818; Hanley v. State, 50 Fla. 82, 39 So. 149; Chapman v. Stubbs, 109 Fla. 192, 147 So. 227; Sneed v. Mayo, Fla.1953, 66 So.2d 865, 874. The petitioner's allegation that he 'did not plead guilty to escape or the word escape was not mentioned' is insufficient to rebut the presumption of verity made by the official record. Cf. Washington, v. Mayo, Fla.1957, 91 So.2d 621. While 'any additional matter which might render the proceeding defective in substance may be the subject of inquiry.' Sneed v. Mayo, supra , no such showing was made by the petitioner here.
The petitioner also contends that a person cannot lawfully be charged and convicted of an escape while confined on a felony charge, until he is tried and convicted of such felony. This contention is also without merit. Our statute, § 944.40, Fla.Stat.1957, F.S.A., provides that
'Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county or municipal, * * * who escapes or attempts to escape from such confinement, if the charge or conviction under which said prisoner is incarcerated constitutes a felony under the laws of the jurisdiction which has caused his incarceration he shall be guilty of a felony * * *; or if the charge or conviction under which said prisoner is incarcerated constitutes a misdemeanor, he shall be guilty of a misdemeanor * * *.' (Emphasis supplied.)
It can thus be seen that escape from lawful confinement is, under the statute, a substantive offense, in and of itself, without regard to whether the prisoner was confined pursuant to a charge or...
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