State ex rel. Dyer v. Wilson

260 So. 2d 241, 1972 Fla. App. LEXIS 6943

• Court: District Court of Appeal of Florida
• Decided: March 29, 1972
• Docket: No. 71-784
• Status: Published

Opinion

OWEN, Judge.

By petition for writ of habeas corpus appellant sought to test the legality of his arrest under an executive rendition warrant issued upon demand of the State of Georgia. This appeal is from the order which denied the petition and remanded the petitioner to custody.

The demand for extradition was accompanied by an authenticated copy of a warrant supported by an affidavit made before a committing magistrate of the State of Georgia. Petitioner challenged the sufficiency of the affidavit to substantially charge a crime under the laws of the demanding state. The court refused to pass upon the sufficiency of the affidavit, concluding that this would be a proper subject for determination by the courts of the demanding state.

Petitioner, having properly raised in the habeas corpus proceeding the question of whether the affidavit made before the magistrate in the demanding state substantially charged petitioner with having committed a crime under the laws of Georgia, is entitled to have that issue determined by the court as a jurisdictional pre-requisite essential to the issuance of the rendition warrant. State ex rel. Huston v. Clark, 1935, 121 Fla. 161, 163 So. 471; Cossette v. State, Fla.App.1969, 221 So.2d 427. The test, both by statute, Section 941.03, F.S.1969, F.S.A., and case law, Chase v. State, 1927, 93 Fla. 963, 113 So. 103, is whether the affidavit substantially charges a crime under the law of the demanding state.

The order is reversed and this cause remanded for further proceedings consistent herewith.

WALDEN and MAGER, JJ., concur.