State Ex Rel. O'Berry v. Pearson

The following petition was filed in this court: "Comes now the State of Florida, ex rel. GEORGE COUPER GIBBS, as Attorney General, ROY D. STUBBS, State Attorney for the 12th Judicial Circuit of Florida, and W.M. SMILEY, as Assistant State Attorney for the 12th Judicial Circuit of Florida, and moves the Court to recall the Writ of Habeas Corpus heretofore issued by one of the Justices of this Court, on the 25th day of November, 1938, which was made returnable before Honorable T. Frank Hobson, one of the *Page 225 Judges of the Circuit Court of the 6th Judicial Circuit of Pinellas County, Florida, on the 28th day of November, 1938, and the said GEORGE COUPER GIBBS as Attorney General, ROY D. STUBBS, as State Attorney for the 12th Judicial Circuit of Florida, and W.M. SMILEY, as Assistant State Attorney for the 12th Judicial Circuit of Florida, make known and inform the Court that all of the matters and things which could be properly disposed of by Habeas Corpus, were previous to the issuance of the aforesaid writ by this Court, disposed of by Honorable W.T. Harrison, one of the Judges of the 12th Judicial Circuit in and for Sarasota County, Florida, as shown by the copies of the motion to quash, filed before and presented to Honorable W.T. Harrison on the 25th day of November, 1938, and the order thereon bearing the same date, * * *. "As alleged in the foregoing paragraph, nothing remains to be disposed of which could be properly disposed of on Habeas Corpus, unless this Court intended for the Honorable T. Frank Hobson to take testimony to determine whether probable cause existed for the filing of the information against the defendant, Karlyle O'Berry, which we submit would not be proper and which we do not believe to be the intention of this Court. The writ of habeas corpus was issued by a Justice of this Court and made returnable before a Circuit Judge as authorized by Section 5, Article V of the constitution, and it does not appear that the Circuit Judge has taken any action upon the writ that may be reviewed by this court. As the writ was issued by a Justice of this Court and not by or for this court nor made returnable before this court, the Justice who issued the writ has power to recall the writ which has not been acted on by the Circuit Judge before whom the writ was made returnable by such Justice. *Page 226 TERRELL, C.J., and WHITFIELD, BROWN, CHAPMAN, and THOMAS, J.J., concur. BUFORD, J., dissents.