Opinion
No. 74-493.
November 22, 1974. Rehearing Denied January 14, 1975.
Appeal from the Circuit Court for Dade County, Dan Satin, J.
Richard E. Gerstein, State's Atty., and John Lipinski, Asst. State's Atty., for appellants.
Jepeway, Gassen Jepeway, Miami, for appellee.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
Respondent-appellants appeal an order sustaining writ of habeas corpus.
By complaint issued on December 24, 1973, petitioner-appellee Alexander Kolski was charged with disorderly conduct in violation of the City of Miami Code 38-10(a). Thereafter, on January 29, 1974 appellee filed a petition for writ of habeas corpus which was issued to Bernard Garmire, Chief of Police of the City of Miami. Respondent Garmire filed a motion to quash or dismiss and as grounds therefor alleged that petitioner was not being held in his custody. Thereupon, petitioner-appellee filed an amended petition for writ of habeas corpus and named as respondents Bernard Garmire, Jack Sandstrom, Director of the Dade County Jail, and E. Wilson Purdy, Sheriff of Dade County. On February 19, 1974 a writ of habeas corpus was issued and on February 25, 1974 respondents filed their return to the writ. A hearing was held thereon at the conclusion of which the circuit court judge entered an order sustaining writ of habeas corpus based upon the finding that the petitioner-appellee was in custody pursuant to an arrest for violating Section 38-10(a) of the Miami Municipal Code and that the ordinance was unconstitutional for its vagueness. The judge also entered an order dismissing the petition and amended petition for writ of habeas corpus as to respondent Bernard Garmire. Respondents Sandstrom and Purdy appeal the order sustaining writ of habeas corpus.
Respondent-appellants first contend that the trial court erred in considering a petition for writ of habeas corpus, issuing a writ thereon and granting a writ of habeas corpus when the petitioner was not, in fact, in the custody of respondents. We find this point has merit.
The record in the case sub judice reflects that a complaint was issued to the petitioner-appellee who promised to appear in court at a time and place to be designated at some future date. Thus, we conclude that the petitioner was not in the custody of respondent-appellants and, therefore, the trial court lacked jurisdiction to entertain the subject petition for writ of habeas corpus. See Starr v. Smith, Fla. 1955, 77 So.2d 834.
Accordingly, the order sustaining the petition for writ of habeas corpus hereby is quashed.
It is so ordered.
I agree with the majority in the outcome of this case. However, I respectfully disagree with the determination that the petitioner is not in custody. The definition of custody is not restricted to actual physical custody or imprisonment. See Hensley v. Municipal Court, San Jose-Milpitas Judicial District, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294.
It is my opinion that the petitioner is in custody, but the restraints on his liberty are not so severe as to justify a writ of habeas corpus which is an extraordinary remedy the use of which is limited to cases of special urgency. Petitioner in this case is seeking by habeas corpus to test the constitutionality of a statute prior to any physical detention and prior to trial when the restraints on his liberty are neither severe nor immediate.