State v. Wingate

• Decision Date: 10 January 1923
• Citation: 85 Fla. 42,94 So. 862
• Parties: STATE ex rel. COHEN v. WINGATE, Sheriff.
• Court: Florida Supreme Court

94 So. 862

85 Fla. 42

STATE ex rel. COHEN v. WINGATE, Sheriff.

Florida Supreme Court

January 10, 1923

Habeas corpus by the State, on the relation of Jesse Cohen, against L. G. Wingate, Sheriff of Manatee County, for discharge from custody.

Writ denied.

Syllabus by the Court

SYLLABUS

Held excessive. Where a person is tried at one term of the circuit court and a mistrial results, and the defendant is remanded to jail and afterwards escapes, and is subsequently arrested and at the next term he is present in court, ready and demanding a trial, and the state attorney puts off the trial from day to day and subseqnently offered to permit the defendant to be released on his own recognizance if he will consent to a continuance, and upon his refusal, is told that an application for continuance will be made and the court will be asked to hold the defendant under $1,500 bond, and upon the defendant resisting the application for continuance which is granted by the court, and at the request of the state attorney, fixes the bond at $3,000, a bond in such an amount, under the circumstances stated, is greatly excessive.

Discharge without bail, where excessive bail required, will be denied. Where excessive bail has been required, and the defendant applies to the court to be discharged from custody without bail, on writ of habeas corpus, the petition will be denied.

COUNSEL

Knowles & Sawyer, of Bradentown, and E. G. Grimes of Palmetto, for petitioner.

OPINION

BROWNE J.

In a petition for writ of habeas corpus, Jesse Cohen alleges that he is wrongfully detained in custody of the sheriff of Manatee county, and prays to be discharged.

A petition for writ of habeas corpus, while a writ of right, will not issue where the facts alleged show that the petitioner is not entitled to the relief prayed.

It appears from the petition that the defendant was indicted by the grand jury of Manatee county on a charge of second offense violation of the intoxicating liquor law; that he was tried at the 1921 fall term of the circuit court and a mistrial resulted; he was remanded to jail and afterwards escaped and was subsequently rearrested and confined in jail that at the 1922 fall term of the circuit court of Manatee county the petitioner was called on the 17th day of October, 1922, and the state attorney announced that he would be ready to try the case on Tuesday, the 24th of October, and the defendant announced that he would also be ready; that the petitioner with his attorneys was in court at the opening thereof, ready, expecting and demanding trial; after waiting two days demanding trial, the state attorney proposed to petitioner's counsel that the case be continued and he be allowed to go on his own recognizance until the next term of court; that the attorneys for the petitioner not consenting to this, and insisting on a trial at that term, the state attorney informed the defendant's attorneys that on account of an absent witness he would ask the court to continue the case 'and hold the defendant under a $1,500 bond'; that the petitioner resisted this application and demanded that the state attorney file his motion for continuance in compliance with the rule controlling such applications; that the state attorney then filed a motion supported by his affidavit in which he alleged that L. A. Hinton was a material witness for the state, and that Hinton was 'temporarily absent' from the state of Florida, and that he knew that Hinton if present would testify that 'he went upon the premises of the defendant at the solicitation and procurement of the said defendant, Jesse Cohen, for the purpose of examining the place where a certain gun was fired at the said Cohen, and that while he, the said L. A. Hinton, was on the premises of...