Summary
In Hattaway v. Culbreath (Fla. 1952), 57 So.2d 661, it was held that documents from Alabama for extradition did not comply with sec. 941.03 of the Florida statutes, which is similar to our sec. 964.03, and were insufficient to support a governor's rendition warrant and therefore the issuance of the warrant was illegal and void.
Summary of this case from State ex Rel. Foster v. UttechOpinion
March 25, 1952.
Appeal from the Circuit Court, Hillsborough County, Henry C. Tillman, J.
Paul S. Buchman, Plant City, and Robert J. Fishkind, Tampa, for appellant.
Richard W. Ervin, Atty. Gen. and George E. Owen and Boone D. Tillett, Jr., Asst. Attys. Gen., for appellee.
This case involves the validity of extradition proceedings from Alabama where appellant is wanted for the offense of vagrancy and non-support. He resisted removal through habeas corpus and after a hearing on the writ and return was remanded for extradition, but allowed to appeal.
Attached to the written demand by the Governor of Alabama to the Governor of Florida is a copy of an Alabama warrant under date of December 20, 1950, for the arrest of appellant for the crime of vagrancy and non-support, which is certified as being authentic by the Governor of Alabama. Also accompanying the demand are two affidavits, neither of which is authenticated by the Governor of Alabama. The first is that the prosecutrix in support of the warrant, dated December 29, 1950, and sworn to before the Clerk of the Circuit Court of Alabama. The second is that of the prosecuting officer of the Alabama Court, sworn to before a notary public, by which he set in motion the extradition proceedings. The Secretary of State certified that these were all of the papers received from Alabama, and they were filed in evidence by Appellant.
Florida closely adheres to the Uniform Criminal Extradition Act and Section 941.03, Florida Statutes, F.S.A., provides: "No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging * * * that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by an authenticated copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of a warrant supported by an affidavit made before a committing magistrate of the demanding state * * *. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit * * * must be authenticated by the executive authority making the demand." (Italics supplied.)
Appellant points out three errors which he deems fatal to the validity of this extradition. First, failure of the Chief Executive of Alabama to authenticate the affidavit supporting the warrant for arrest. Second, the affidavit was made before the Clerk of the Circuit Court of Alabama, who is not a committing magistrate. Third, the Governor's demand failed to allege that the defendant was in the demanding State when the offense was committed, or that acts were committed by appellant while in Florida which resulted in a crime in Alabama, as under 941.06, Florida Statutes, F.S.A., which provides for extradition in that instance.
Appellant's first and third points are well founded, so it is not necessary to determine the second.
The warrant for arrest of appellant issued by the Clerk of the Circuit Court of Alabama required him to "answer the State of Alabama on a charge of vagrancy and non-support. Preferred by Ruth Hattaway." Appellee contends that when the Governor of Alabama authenticated the warrant in his written demand he impliedly certified as authentic the affidavit upon which it was based, because of the reference in the warrant to the charge, "preferred by Ruth Hattaway". It is our view, however, that the statute is too explicit in its terms to permit other than express authentication of the essential affidavit to which the act refers. Appellee supplies no supporting authority for his contention.
Since 1848 it has been the law of Florida that the Governor should not deliver anyone on extradition when there is no evidence that the requirement that the affidavit shall be produced and authenticated by the Governor demanding the extradition has been complied with. See Ex parte Powell, 20 Fla. 806.
In Schriver v. Tucker, Fla., 42 So.2d 707, 709, this Court said that "* * * a Rendition Warrant based upon documents not certified as authentic by the Executive Authority of the demanding state, would be illegal and void."
As to appellant's third point, the demand by the Chief Executive of Alabama merely states that appellant "* * * stands charged with the crime of vagrancy and non-support committed in the County of Covington in this state * * *" and does not contain the necessary allegation that he was present in the State of Alabama when the alleged crime was committed; nor does such allegation appear in the arrest warrant referred to in the Governor's demand, or in the affidavit of Ruth Hattaway. The sworn application for extradition by the prosecuting officer, however, does allege that appellant was present in the State of Alabama when the offense was committed, but this paper was not authenticated by the Governor of Alabama or by any reference made a part of his written demand.
The case of Ennist v. Baden, 158 Fla. 141, 28 So.2d 160, 163, involved an attempted extradition by the State of New York for an alleged fugitive in Florida who was wanted for prosecution for non-support. This Court said in its opinion with reference to 941.03 and 941.06, Florida Statutes, F.S.A.: "We think that it is essential that the indictment, information or affidavit under which extradition is sought to be issued within the purview of this state statute must allege that at the time the alleged crime was committed the accused was then either in this state or that he was then in a third state (named in the charging document) and in the state named committed an act intentionally resulting in a crime in the state whose executive authority is making the demand, or must contain a showing that the accused was in the demanding state at the time the crime was committed, and that otherwise the extradition warrant cannot lawfully issue."
No attempt is made in this case to extradite appellant under 941.06, Florida Statutes, F.S.A., for acts committed in Florida resulting in a crime in Alabama.
It follows that appellant must be discharged.
Reversed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.