Opinion
December 19, 1956.
Appeal from the Circuit Court for Polk County, D.O. Rogers, J.
Clifton M. Kelly, Lakeland, and Monte J. Tillis, Jr., Bartow, for appellant.
Oxford Oxford, Lakeland, for appellee.
This is an appeal from a judgment of the circuit court ordering the appellee released from custody of respondent, as sheriff, on writ of habeas corpus. The writ was granted by the circuit judge apparently upon the ground that the criminal court of record, whose proceedings were brought before the circuit court for review, should have honored a defense of former jeopardy and dismissed criminal proceedings against the appellee.
Appellant contends that there was no double jeopardy established by appellee in the criminal court of record, and that in any event the remedy of habeas corpus should not have been permitted below. We do not consider it necessary to pass upon the defense of former jeopardy, because it appears that this case is substantially identical with Sullivan v. State ex rel. Cootner, Fla., 44 So.2d 96, which is controlling and necessitates reversal upon the ground that habeas corpus was not available to appellee in the circuit court. Accordingly, the judgment must be, and it is hereby, reversed and the cause is remanded to the circuit court with directions to dismiss the petition for writ of habeas corpus.
It is so ordered.
DREW, C.J., and TERRELL, THORNAL and HOBSON, JJ., concur.