531 F2d 1339 Bell v. L Wainwright

531 F.2d 1339

Edward BELL, Petitioner-Appellant,
v.
Louie L. WAINWRIGHT, Secretary, Offenders Rehabilitative
Services, Respondent-Appellee.

No. 76--1156 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

May 24, 1976.

Edward Bell, pro se.

William I. Munsey, Jr., Asst. Atty. Gen., Robert L. Shevin, Atty. Gen., Tampa, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

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1

Petitioner Bell, a Florida prisoner convicted of first degree murder in 1974, appeals the District Court's denial of his habeas petition. The District Court reached the merits of his claim, although the Florida appellate court1 on direct appeal had remanded Bell's case for a determination of competency at trial time.2 We vacate and remand.

2

Following his conviction and imposition of a life sentence, Bell appealed to the Florida Second District Court of Appeal. He claimed that the Trial Court (i) erred in failing to grant his motion to discharge for failure to comply with the Florida speedy trial rule, Fla.R.Crim.P. 3.191(a)(1) and (ii) wrongfully allowed testimony by two psychiatrists who were not named on the State's witness list.

3

The Florida appellate court affirmed the judgment and sentence on the merits, but remanded because the Circuit Court failed to enter an order as to Bell's competency at trial time. Fla.R.Crim.P. 3.210(a)(3) & (4). The appeals court directed that if on remand Bell is found to have been competent, the judgment and sentence are affirmed, but if he is found incompetent the judgment and sentence shall be set aside and he must be granted a new trial at such time as he is found competent.3

4

Bell filed his habeas petition with the Federal District Court approximately ten days after the filing of the Florida appellate opinion. The Federal Court ruled on the merits that Bell was not denied his constitutional right to a speedy trial. We do not reach that issue, however, as we believe that the Court should have disposed of the habeas petition differently.

5

The record indicates no disposition by the Florida Circuit Court on remand for determination of Bell's competency. If he is found to have been incompetent, we assume that the Florida Trial Court will carry out the direction of the appellate court and vacate his sentence and judgment. If he is found to have been competent, he may carry that appeal through the Florida Courts and then refile his federal habeas petition.

6

The purpose of § 2254 and the policy of exhaustion is to assure that the State have the first opportunity to review decisions of its Courts. Until that time we ought not engage in any academic exercises. Therefore, we hold that on principles of comity and federalism, as well as sound judicial administration, the District Court should have dismissed Bell's habeas petition without prejudice. United States ex. rel. Massey v. Kennedy, 5 Cir., 1971,446 F.2d 1388, 1389.

7

VACATE AND REMAND.

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*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I

1

Bell v. State, Fla.App.2d, 1975, 318 So.2d 498, 500

2

Fla.R.Crim.P. 3.210(a)(3) & (4)

3

Citing Parks v. State, Fla.App.4th, 1974, 290 So.2d 562