Opinion
February 7, 1950.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Richard W. Ervin, Attorney General, Reeves Bowen, Assistant Attorney General, Glenn C. Mincer, State Attorney, Robert R. Taylor, County Solicitor, Miami, and V.B. Rutherford, Assistant County Solicitor, Miami Beach, for appellant.
Louis M. Jepeway and John G. Dauber, Miami, for appellee.
This case here on appeal by the State from an order of discharge in habeas corpus.
Appellee was informed against for violation of Sec. 806.06, Fla. Stat. 1941, F.S.A., in the Criminal Court of Record of Dade County. Thereupon he applied to the Circuit Court of Dade County for a writ of habeas corpus based upon the defense of former jeopardy. Upon hearing he was discharged and pursuant to an order duly entered was taken here.
Two questions are presented: (1) Is the remedy of habeas corpus available to appellee in this case? (2) Is there double jeopardy?
On the latter question we express no opinion because we have concluded that habeas corpus was not available.
The law was settled long ago that habeas corpus would not issue where there was a remedy by appeal or writ of error, unless the charge was wholly void or the statute under which the charge was filed was void. Lehman v. Sawyer, 106 Fla. 396, 143 So. 310; In re Robinson, 73 Fla. 1068, 75 So. 604, L.R.A. 1918B, 1148; Spooner v. Curtis, 85 Fla. 408, 96 So. 836, 843. The passage of the Criminal Procedure Act caused confusion by providing in certain instances habeas corpus was proper. See Sec. 909.04, Fla. Stat. 1941, F.S.A. In construing this Section, however, we said that the Legislature could not alter the scope of the writ of habeas corpus. Jones v. Cook, 146 Fla. 253, 200 So. 856.
The reason for this interpretation also appears in our recent case State ex rel. Johnson v. Anderson, Fla., 37 So.2d 910. The effect of a contrary view would enable a defendant to by pass the inferior courts rightfully having jurisdiction.
The judgment is reversed with directions to dismiss the petition.
Reversed.
TERRELL, THOMAS and ROBERTS, JJ., concur.