CHARLES HENRY BROWN, APPELLANT,
v.
LOUIE L. WAINWRIGHT, SECRETARY, DEPARTMENT OF CORRECTION, APPELLEE
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The appellate court affirmed the trial court's denial of a habeas corpus petition, agreeing that the trial court lacked the authority to grant the requested relief.
Appellant filed a habeas corpus petition claiming illegal incarceration due to an illegal sentence imposed by a Dade County court. The trial court den…
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ANSTEAD, Judge.
The appellant filed a petition for writ of habeas corpus claiming that he was illegally incarcerated in Palm Beach County. See Olcott v. State, 378 So. 2d 303 (Fla.2d DCA 1979); Shead v. State, 367 So. 2d 264 (Fla.3d DCA 1979). The trial court denied the petition on the grounds that it was without authority to grant the relief to which the appellant was apparently entitled, namely resentencing. In its order denying the petition the trial court noted that the appellant could file a motion for post-conviction relief in the court where he was originally sentenced in Dade County. We agree with the trial court.
The appellant was placed on probation for ten years by a circuit judge in Dade County and by a special condition of probation was ordered to serve six years in prison. The Third District Court of Appeal has held that such a “sentence” is illegal and requires resentencing. Shead v. State, supra. The trial court here, on an application for petition for writ of habeas corpus, was without authority to resentence the appellant or to order his release.1 Accordingly, the order denying the petition for writ of habeas corpus indicating that appellant should file a motion for post-conviction relief was correct and we affirm.
AFFIRMED.
LETTS, C. J., and GLICKSTEIN, J., concur. . An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. Fla.R.Crim.P. 3.850.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Leichtman v. Singletary, 674 So. 2d 889 (Fla. 4th DCA 1996)…December 29, 1995); Washington v. Dugger, 579 So. 2d 922 (Fla. 3d DCA 1991) (Clearly, an illegal sentence can be corrected at any time by a motion to vacate, pursuant to rule 3.850, Florida Rules of Criminal Procedure); see also Brown v. Wainwright, 383 So. 2d 754 (Fla. 4th DCA 1980). The remedy of habeas corpus is not available as a substitute for post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure. See Finley v. State, 394 So. 2d 215 (Fla. 1st DCA 1981). In Broom, the court explain…
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Patterson v. State, 664 So. 2d 31 (Fla. 4th DCA 1995)…assistance of trial counsel are among those issues that should be raised by a motion for post-conviction relief, not a petition for habeas corpus. See generally Whitehead v. Dugger, 544 So. 2d 1070 (Fla. 4th DCA 1989); see also Brown v. Wainwright, 383 So. 2d 754 (Fla. 4th DCA 1980) (illegal sentence should be raised by motion for post-conviction relief and not petition for writ of habeas corpus). Defendant concedes that he was seeking post-conviction relief outside the two year time limit of rule 3.850. Acc…
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Curry v. State, 846 So. 2d 1189 (Fla. 5th DCA 2003)…corpus petition and agreeing with the trial court that Bryant was collaterally attacking his judgment and sentence, and the method was to file a timely 3.850 motion in the proper venue where sentence had been imposed); see also Brown v. Wainwright, 383 So. 2d 754 (Fla. 4th DCA 1980) (“the order denying the petition for writ of habeas corpus indicating that ap [*1190] pellant should file a motion for post conviction relief was correct and we affirm”). The trial court’s order denying the petition for writ of…
Authorities Cited
- Shead v. State, 367 So. 2d 264 (Fla. 3d DCA 1979)
- Chauncey Patrick Olcott v. State, 378 So. 2d 303 (Fla. 2d DCA 1979)