Durley v. Mayo

RESPONDENT: Nathan Mayo, Custodian, Florida State Prison

DECIDED BY: Warren Court (1955-1956)
LOWER COURT: Florida Supreme Court

ARGUED: Apr 02, 1956
DECIDED: Jun 04, 1956

Neal P. Rutledge - acting under appointment by the Court, for the petitioner
Reeves Bowen - Assistant Attorney General of Florida, for the respondent

Facts of the case


Media for Durley v. Mayo

Audio Transcription for Oral Argument - April 02, 1956 (Part 1) in Durley v. Mayo

Audio Transcription for Oral Argument - April 02, 1956 (Part 2) in Durley v. Mayo

Reeves Bowen:

-- petition denial (Inaudible) judicial knowledge, or whether that point out to the Court that he has had a fair and adequate opportunity in a previous petition to present the question now presented judicially known to the Court.

The order is in the same form.

Now, I do not think that this order shows a decision on the merits.

All it does is to say that he has failed to show probable cause.

Supreme Court of Florida takes judicial notice of its own record.

It said that time and again and that -- and then the cases where they -- it shows the application of that rule.

Now, Supreme Court of Florida, in the present case here, if this order is quite consistent with the disposition on the part of that Court, knowing as we do, judicially, that Durley, (Inaudible) record, that he has raised the same federal question in 1952 that he now seeks to raise.

He hasn't, in truth and in fact, shown probable cause showing it's illegal, was detained because we know that that's barred as a matter of res judicata.

Or they could have said, if they thought that there was no res judicata, if they thought that the federal question had not been raised in 1952, they could have said themselves, why we know, as a matter of judicial knowledge, that he had a fair and adequate opportunity in 1952 to raise this question and since he did have, nothing he says here, shows any probable cause to -- to think he ought to be turned out

Stanley Reed:

Did -- did I understand, before the recess, that -- that you said this was rather a standard --

Reeves Bowen:

That is the standard form of order.

I -- I -- that was my recollection.

I checked it with the clerk over the telephone sometime ago.

They've been using that standard form of order and a denial for many years with exception.

I'll grant you that at times --

Stanley Reed:


Reeves Bowen:

-- like Irvin against Chapman and -- and Washington against Mayo, in State ex rel.Johnson against Mayo, they had also filed an order to enunciate some principle that they think they ought to take time out from their -- from their busy labors for writing opinion about and they will deviate from that rule when they want to write an opinion but all -- in all other cases, this is the form of order that is used regardless of what I urge as a reason for denial.

So, there's nothing about the form of this order that says the -- they considered the thing on the merits because he certainly had not shown any reason to think he'd been illegally detained if everything he said was barred by -- and judicially known to them to be barred either by the doctrine of res judicata or by the other doctrine that he had a fair and adequate opportunity to raise it before and didn't.

Now, he didn't attempt to bring himself, in this case, to decide in 1955 down there.

He didn't attempt to make the slightest excuse for not having raised the question in 1952, if, in fact, he thought he had not raised it.

I submit that he did raise the federal question in 1952.

But if he had thought that he did not raise it, he made no effort to bring himself under the Johnson case by giving an excuse for not having raised it.

Presumably, he had a fair and adequate opportunity because he had counsel and knew everything then that he knows now.

To get on to the merits of the proposition of double jeopardy or double punishment, I point out that in each case, the trial court judged Durley to be guilty of the offense charged in each count.

There were three counts in each case.

In case number 4179 it would best but nonetheless, the first or when he gets the first sentences in.

The judge sentenced him for your offense charged in the first count.

Then he sentenced him for your said offense charged in the second count to run consecutively with the sentence under the first count.

Under the third count, he said, for -- for your said offense charged in the third count.

And sentenced -- and made that sentence run consecutively to the other two.