213 So. 2d 755 | Fla. Dist. Ct. App. | 1968
This cause is before us on an original petition for a writ of habeas corpus seeking the release of the petitioner who is presently being held in custody under a conviction of first degree murder or, in the alternative, the petitioner seeks to be granted the right of a full appellate review of his judgment of conviction and sentence as may be provided in cases where a person convicted has been deprived of his state constitutional right of appeal by state action. See Hollingshead v. Wainwright, Fla., 194 So.2d 577.
We issued our rule nisi to' the respondent. His return has been filed by the Attorney General contending inter alia that the petition should be dismissed because the same relief is being sought upon identical grounds, denial of counsel on appeal, in a postconviction proceeding under Rule 1.850, 33 F.S.A., which is presently pending’ in this court in case No. K-133. Citing Henderson v. State, Fla., 184 So.2d 646; and Zuniga v. State, 184 So.2d 659 (Fla.App. 1st, 1966), the State has conceded that the question raised by petitioner is one which is determinable under Criminal Procedure Rule 1.850. We agree.
The rule nisi heretofore issued is discharged and the petition herein dismissed without prejudice to petitioner’s right to have his contention regarding counsel on appeal considered under Rule 1.850 in case No. K-133 now pending in this court.
