Opinion
March 24, 1950.
Appeal from the Circuit Court, Duval County, Miles W. Lewis, J.
Wayne E. Ripley, County Solicitor, Jacksonville, Richard W. Ervin, Attorney General and Reeves Bowen, Assistant Attorney General, for appellant.
Maurice W. Goldstein, Jacksonville, for appellee.
Appellee and others were informed against in the Criminal Court of Record, Duval County. The information was filed at February Term 1948 and alleged that the charges against appellees were committed April 13, 1948. The case was set for trial July 19, 1948 but was continued for the term. It was later set for September 8, 1948, but was not tried. It was then passed to the "absentee docket" and the defendants were released from custody.
Eleven months after passing the case to the "absentee docket" appellee was arrested and taken in custody by the sheriff of Duval County upon a capias by the County Solicitor to stand trial on the information. He forthwith applied for and was granted a writ of habeas corpus. On hearing before the Circuit Court he was discharged and released from custody of the sheriff on the theory that his constitutional right to a speedy trial had been violated. The County Solicitor moved for and was granted permission to take writ of error to the Supreme Court and the appeal was perfected September 20, 1949.
The point for determination is whether or not the appeal was taken in time to confer jurisdiction on this Court.
Rule 36(a) of the Rules of this Court provides that "Writs of Error from judgments in habeas corpus cases as authorized by law are hereby abolished and relief by appeal is substituted, provided application therefor be made as provided in Section 79.11, Florida Statutes 1941, F.S.A. § 79.11." Section 924.07(6), Florida Statutes 1941, F.S.A., also provides that an appeal may be taken by the State from a judgment discharging a prisoner on habeas corpus. Section 924.10, Florida Statutes 1941, F.S.A., provides that an appeal may be taken by the State only within twenty days after the order or sentence appealed from is entered.
The answer to the question presented turns on whether Rule 36(a) of the Rules of this Court and the statute therein referred to, or Sections 924.07 (6) and 924.10, Florida Statutes 1941, F.S.A., relating to the manner of taking appeals in habeas corpus control.
Section 79.11 is a part of Chapter 79, Florida Statutes 1941, F.S.A., which deals with writs of error to and other aspects of habeas corpus. Sections 924.07(6) and 924.10 are parts of the Criminal Procedure Act and among other things provide how and when appeals from a judgment discharging prisoner on habeas corpus may be taken. In cases like this, such appeals must be taken by the State only within twenty days after the order or sentence appealed from.
We think the latter Statute being the latest expression of the legislature on the question, superseded or modified Chapter 79.11, and is the controlling law on the question. The order appealed from was entered August 29, 1949. It appears that the appeal was taken twenty-one days thereafter which was too late to comply with the statute and confer jurisdiction of the appeal on this Court.
Appeal dismissed.
ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.