No. 64-360 | Fla. Dist. Ct. App. | Mar 9, 1965
This appeal is from an order of the trial court summarily denying relief under Criminal Rule 1, F.S.A. Ch. 924 Appendix, sought on motion of appellant filed while he was serving a sentence imposed on convictions following trial on two informations charging him with forgery and with uttering a forged instrument. The ground urged by appellant for relief was that he was not at any time afforded a preliminary hearing before a magistrate. That contention was not accompanied by a showing in the motion of any harm or prejudice resulting. The contention lacks merit, and the trial court was eminently correct in so concluding. Baugus v. State, Fla.1962, 141 So. 2d 264" date_filed="1962-05-09" court="Fla." case_name="Baugus v. State">141 So.2d 264, cert. den. 83 S. Ct. 153" date_filed="1962-10-22" court="SCOTUS" case_name="Newton v. Louisiana">83 S.Ct. 153, 371 U.S. 879" date_filed="1962-10-22" court="SCOTUS" case_name="Hughes v. Fay">371 U.S. 879, 9 L.Ed.2d 117; Hoffman v. State, Fla.App.1964, 169 So. 2d 38" date_filed="1964-11-17" court="Fla. Dist. Ct. App." case_name="Hoffman v. State">169 So.2d 38. In the Hoffman case, the first district court of appeal, in an opinion authored by Judge Wigginton, said:
“ * * * By his first point he contends that his constitutional right to due process of law was violated because of the state’s failure to promptly grant him a preliminary hearing after his arrest and before his arraignment. This contention has been held to be wholly without merit. In Baugus v. State, it was held that the procedure of hearing a case preliminarily under F.S. Chapter 902, F.S.A., is not a step in due process of law, nor is it a prerequisite to a criminal prosecution or filing of an indictment. It serves only to determine whether or not probable cause exists to hold a person for trial, and a prosecution may be instituted and maintained regardless of such an investigation.”
Accordingly the order appealed from is affirmed.
Affirmed.