Florida Parole & Probation Commission v. Baker

346 So. 2d 640, 1977 Fla. App. LEXIS 15754

• Court: District Court of Appeal of Florida
• Decided: June 3, 1977
• Docket: No. 76-1064
• Status: Published

Opinion

HOBSON, Acting Chief Judge.

Appellant appeals an order of the circuit court granting appellee’s petition for writ of habeas corpus and ordering his release.

Prior to appellee filing his petition for writ of habeas corpus in the circuit court, he filed a petition for writ of habeas corpus in this court alleging the identical facts as alleged in his petition in the circuit court. This court, on April 20, 1976, denied his petition. On April 21st he filed a petition for rehearing which this court denied on May 13, 1976.

The petition filed in the circuit court was mailed on April 26, 1976 and received on May 5, 1976, both dates being prior to this court’s denial of his petition for rehearing.

The circuit, district and supreme courts have concurrent jurisdiction in habe-as corpus.¹ It is well established that a petitioner may not have three direct, repetitious applications for habeas corpus available to him upon the same subject matter.² The two petitions both involve the same subject matter and, in fact, the petition filed in the circuit court was filed prior to this court’s denial of appellee’s petition for rehearing.

For the reasons stated above we hold that the defense of res judicata is established on this record.

The order appealed granting the writ of habeas corpus and ordering appellee released is hereby reversed and the cause remanded.

McNULTY and OTT, JJ., concur.

1 . Florida Constitution, Art. V, §§ 3, 4 and 5.

2 . State ex rel. Miller v. Kelly, 88 So.2d 118 (Fla.1956) and State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973).