Opinion
No. 74-994.
April 15, 1975.
Appeal from the Circuit Court for Dade County, Sidney Weaver, J.
Phillip A. Hubbart, Public Defender and Steven Rappaport, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
In 1971, defendant-appellant was informed against for second degree murder, tried by jury, found guilty and sentenced to life imprisonment. Thereafter, on May 23, 1974 the defendant filed a petition for post-conviction relief pursuant to RCrP 3.850 on the grounds that he was denied his constitutional guarantee of due process of law because he did not have a preliminary hearing by a neutral and detached magistrate. The trial court denied this petition on May 31, 1974 and defendant appeals therefrom.
The recent U.S. Supreme Court decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (Decided February 18, 1975) is dispositive of this appeal. Although the Supreme Court held therein that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest, the court further held that a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. Defendant-appellant having been convicted in the case sub judice, the order denying his motion to vacate must be and hereby is affirmed.
Affirmed.