Opinion
No. K-59.
July 25, 1968. Rehearing Denied August 26, 1968.
Petition for review from the Circuit Court for Volusia County, Horace D. Riegle, J.
John Michael Ferenc, in pro. per.
Earl Faircloth, Atty. Gen., David U. Tumin, Asst. Atty. Gen., for appellee.
ON MOTION TO QUASH APPEAL
The State has filed a motion to quash this appeal taken from an order denying appellant's petition for a writ of habeas corpus filed in the Circuit Court in and for Volusia County.
The ground for the State's motion to quash the appeal is that same is frivolous in that the law is clear that habeas corpus proceedings will not lie to test the sufficiency of a prisoner's arrest prior to trial on the offense charged following said arrest.
We have examined the allegations of the petition, the denial of which is the subject of the instant appeal. Such examination sustains the State's contention that its sole purpose is to test the legality of the appellant's arrest and that appellant's appeal from the Circuit Court's order of dismissal is frivolous and interposed solely for the purpose of delay. Since it is quite clear that while the illegality of an arrest may be the proper subject of appellate review, habeas corpus proceedings prior to trial are unavailable to test the legality of the arrest. A habeas corpus proceeding is not a substitute for the adequate remedy of appeal. See Buchanan v. State ex rel. Morris, 167 So.2d 43 (Fla.App.3d 1964).
The State's motion to quash this appeal is granted.
WIGGINTON, Chief Judge, CARROLL, DONALD K., and SPECTOR, JJ., concur.