Boyd v. Cochran

118 So. 2d 627, 1960 Fla. LEXIS 2567

Opinion

PER CURIAM.

Based upon the petition of Lewis Clyde C. Boyd, this Court issued its writ of habeas corpus directed to respondent H. G. Cochran, Jr., Director, Division of Corrections. To this writ respondent has now filed a return alleging matters which, if true, show cause why petitioner is legally detained and imprisoned by him.

While the return to the writ is not conclusive of the facts stated therein, § 79.06(1), F.S.A., its allegations are taken as true until impeached, and evidence is not needed to support an uncontroverted return. Sullivan v. State ex rel. McCrory, Fla.1951, 49 So.2d 794; Cooper v. Sinclair, Fla.1953, 66 So.2d 702; Moat v. Mayo, Fla. 1955, 82 So.2d 591.

Petitioner, by his traverse to respondent’s. return, alleges facts in contradiction thereto. However, the facts controverted involve the very issues which were essential to his conviction in the trial court. The writ of habeas corpus will not issue where there was a remedy by appeal. Sullivan v. State ex rel. Cootner, Fla.1950, 44 So.2d 96.

In view of the above, it must be held that the writ heretofore issued should be and hereby is quashed.

It is so ordered.

THOMAS, C. J., and TERRELL, DREW, THORNAL and O’CONNELL, TT., concur.