
    James E. HIGGINBOTHAM, Petitioner, v. STATE of Florida and Louie L. Wainwright, Director, Division of Corrections, State of Florida, Respondents.
    No. 2552.
    District Court of Appeal of Florida. Fourth District.
    April 23, 1969.
    On Petition for Clarification June 12, 1969.
    James E. Higginbotham, in pro. per.
    Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for respondents.
   PER CURIAM.

Habeas corpus denied.

WALDEN, C. J., and CROSS and OWEN, JJ., concur.

ON PETITION FOR CLARIFICATION

PER CURIAM.

By a per curiam decision without opinion filed April 23, 1969, we denied the petition for writ of habeas corpus wherein petitioner had sought to obtain delayed appellate review under the authority of Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577. Respondents now seek clarification of whether our decision was on the merits of the appeal or solely on the right of petitioner to utilize habeas corpus to obtain delayed appellate review. In the instant case the request for clarification is valid because of the difference in effect which the basis of our decision may have on further rights of the parties.

The petitioner had filed a timely appeal from judgment and sentence imposed by the Criminal Court of Record of Brevard County and while such appeal was pending his family at their own expense had retained counsel to represent petitioner on the direct appeal. Subsequently, petitioner’s family learned that, in the event the appeal was successful and the judgment and sentence set aside, petitioner could be retried and, if found guilty, could be sentenced to a ten-year term rather than to the five-year term originally imposed. Petitioner’s family, without petitioner’s knowledge or consent, thereupon notified retained counsel to dismiss the appeal, which he did.

Upon the basis of the foregoing facts we concluded that the petitioner was not entitled to use habeas corpus as a means of obtaining delayed appellate review upon the authority of King v. Wainwright, 5 Cir. 1966, 368 F.2d 57; Pate v. Holman, 5 Cir. 1965, 341 F.2d 764; Schaeffer v. Wainwright, Fla.1969, 218 So.2d 442; Pierson v. State, Fla.App.1968, 214 So.2d 17; Kinsey v. State, Fla.App. 1965, 179 So.2d 108. We therefore denied the petition for writ of habeas corpus without consideration of the merits of the points presented for appellate review.

The petition for clarification is granted and our decision heretofore filed April 23, 1969, denying petition for writ of habeas corpus, is hereby clarified to show the basis upon which the petition for writ of habeas corpus is denied.

WALDEN, C. J., and CROSS and OWEN, JJ., concur.  