DocketNumber: No. 78-6490
Citation Numbers: 48 Fla. Supp. 107
Judges: Nesbitt
Filed Date: 10/12/1978
Status: Precedential
Modified Date: 1/12/2023
Petitioner was detained and held in custody by the Dade County Department of Correction and Rehabilitation on the basis of a New York warrant, an indictment having been filed in the state of New York charging him with the crimes of obscenity and conspiracy. Subsequently, an extradition demand was made on the governor of Florida by the governor of New York, whereupon the governor of Florida issued a warrant of rendition in compliance with the New York demand.
At this habeas proceeding, petitioner argued that the extradition papers filed by New York state did not satisfy the jurisdictional requirements of Florida Statutes 941.03 and 941.06, and that as such the Florida executive warrant was improperly issued.
The affidavits and the Oneida County, New York, warrant which accompanied the New York extradition demand showed that the petitioner was not in the state of New York at the time of the commission of the alleged crimes, but rather the affidavits and warrant alleged that the petitioner was in the commonwealth of Pennsylvania at the time he committed the acts which allegedly resulted in crimes in the state of New York. When Florida Statute
Neither of the above mentioned affidavits was made before a committing magistrate of the state of New York
Respondent has argued that whereas the affidavits contained allegations as to the presence of petitioner at the time of the commission of the alleged crime, the affidavits and indictment together suffice as charging documents on which to base the extradition demand. In response thereto petitioner has asserted that Florida extradition law does not provide that an indictment supported by affidavit may suffice as a charging document. As petitioner interprets Florida Statutes 941.03 and 941.06, an indictment must stand or fall on its own as a charging document. But the argument presented by petitioner which this court finds to be dispositive on this point is that in any event, an affidavit not sworn to before a committing magistrate of the demanding state is without any force or effect as a supplementary charging document in a Florida extradition proceeding. O’Brien v. State, 13 Fla. Supp. 57 (1958).
. Fla. Stat. §941.03 also provides that an information supported by affidavit will suffice as a charging document, but since no information has been provided by the governor of New York, reference to same will be deleted.
. The affidavits in question were made before a notary public. New York General Construction Law Section 28-b provides: “A magistrate is a judge of any court of this state.” The respondent has failed to show that the notary public before whom the affidavit was sworn satisfied the New York definition of a magistrate.