
    Oscar OJEDA, Petitioner, v. STATE of Florida, Respondent.
    No. 62617.
    Supreme Court of Florida.
    Feb. 3, 1983.
    Original Proceeding — Habeas Corpus.
    Nathan E. Eden of Feldman & Eden, Key West, and Bennie Lazzara, Jr. of the Law Offices of Bennie Lazzara, Jr., Tampa, for petitioner.
    Jim Smith, Atty. Gen. and Marti Rothen-berg, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

We deny the petition for writ of habeas corpus. See Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975).

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.

McDONALD, j., concurs specially with an opinion, in which ADKINS, J., concurs.

McDONALD, Justice,

specially concurring.

I would discharge the writ, but for an entirely different reason.

The petitioner, Oscar Ojeda, contends that he is illegally detained because he has been denied release under bond pending appeal from his conviction of a drug trafficking offense. Ojeda filed a petition for habeas corpus before the district court of appeal which denied the same without opinion. He sought review of that denial with this Court but, since there was no conflict or evidence from that order that the constitutionality of a statute was in question, we declined to accept the case for review.

Ojeda was deprived of consideration of his right to be released on bond pending his appeal because of the provisions of section 903.133, Florida Statutes (1981). Ojeda contends that this statute is unconstitutional because it trespasses upon this Court’s exclusive rule-making power. But for this unconstitutional statute, he contends, he would be granted an appeal bond. By denying his petition, the district court implicitly upheld the statute but, because of the manner in which it was done, we could not review that decision.

In this limited circumstance I feel that we should not apply the ironclad rule enunciated in Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), to the effect that filing a habeas corpus petition in the district court precludes the filing of one here and that we should accept the time-honored petition for habeas corpus and address the merits of the claim.

On the merits Ojeda loses. One’s freedom is a substantive matter. The curtailment of one’s freedom upon conviction of a crime pending appeal is a substantive matter and not a procedural matter. The legislature has the right to enact the statute it did. There was a rational relationship to a legitimate state interest existing when section 903.133 was enacted, and it did not impinge on our rule-making power. That statute should not be disturbed.

ADKINS, J., concurs. 
      
       He was sentenced pursuant to the provisions of § 893.135, Fla.Stat. (1981).
     