Battle v. Stone , 131 Fla. 136 ( 1938 )

On October 23, 1936, plaintiff in error filed in the Circuit Court of Volusia County, Florida, his petition for writ of habeas corpus alleging, among other things, that he was unlawfully restrained of his liberty by S.E. Stone, as Sheriff of Volusia County, Florida. A writ of habeas corpus issued and was directed to S.E. Stone, as Sheriff of Volusia County, commanding that he produce the body of petitioner, with the cause of his said detention. Honorable S.E. Stone, Sheriff of Volusia County, Florida, filed his return to the writ of habeas corpus, and for cause of detention showed that he held the said James Battle, plaintiff in error, by virtue of a commitment to serve a sentence issuing out of the Justice of the Peace Court of the Ninth District of Volusia County, Florida, on October 20, 1936, by George L. Kelley, Justice of the Peace. The commitment directed the said James Battle to pay a fine of $5.00 and costs of prosecution amounting to $29.76, and in default thereof, to serve a term of sixty days in the county jail at hard labor, subject to the Board of County Commissioners.

The cause was heard on the 23rd day of October, 1936, by Honorable H.B. Frederick, Circuit Judge of Volusia County, Florida, and after the hearing an order was made and entered remanding plaintiff in error to the custody of S.E. Stone, as Sheriff of Volusia County, Florida, to serve the sentence imposed and described in the commitment.

A writ of error was sued out, supersedeas perfected, and the cause is here for review and a reversal is sought of the order remanding plaintiff in error to the custody of the Sheriff of Volusia County.

The transcript of the record was filed in this Court on November 20, 1936, and a brief in support of petitioner's contention has not been filed as required by the rule of this Court. On December 20, 1937, Honorable Cary D. Landis, Attorney General, by Tyrus A. Norwood, Assistant Attorney General, filed a motion to affirm the judgment of the lower court in this cause on the ground that the precise question raised in said appeal was decided adversely to the petitioner by this Court on November 4, 1937, in the case of Willie Scott v. S.E. Stone, as Sheriff of Volusia County, Florida. We have examined the entire transcript of the record, as well as the citation of authority, supra, and it appearing that the contention of the Attorney General's office is well founded and should be granted on the authority, supra, the judgment appealed from is hereby affirmed.

ELLIS, C.J., and WHITFIELD, TERRELL, BROWN and BUFORD, J.J., concur.