Opinion
No. 65-832.
April 26, 1966. Rehearing Denied May 11, 1966.
Appeal from the Circuit Court, Dade County, Pat Cannon, J.
Richard E. Gerstein, State Atty., and Roy S. Wood, Asst. State Atty., for appellant.
Thomas A. Testa, Miami, for appellee.
Before HENDRY, C.J., and CARROLL and BARKDULL, JJ.
The appellee, Verne L. Bartling, instituted a habeas corpus proceeding in the court below to contest a rendition warrant issued by the Governor of Florida for his return to the State of Louisiana to answer an indictment charging him with the crime of forgery. Following a hearing the trial court ordered the appellant to release the appellee from his custody.
The appellee attempted to prove by the evidence submitted in support of his petition that he was not present in the demanding state at the time of the commission of the crime. On this issue the evidence offered by the contending parties was in conflict.
Where there is merely contradictory evidence on the issue of presence in or absence from the demanding state the court should not discharge one arrested under the governor's warrant.
State ex rel. Kimbro v. Starr, Fla. 1953, 65 So.2d 67.
We have found that there is competent evidence to sustain the warrant and that the appellee failed to overcome the prima facie case made by the rendition warrant. Therefore, the judgment of the court below discharging the appellee from custody was erroneous.
Accordingly, the judgment appealed from should be reversed.
Reversed.