ERNEST NETHERLY, APPELLANT,
v.
RICHARD L. DUGGER, SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of habeas corpus petition where inmate challenged forfeiture of gain time as ex post facto, holding the petition was premature because inmate remained legally confined.
A habeas corpus petition challenging forfeiture of gain time must be filed when the petitioner is illegally confined, not prematurely while legally confined.
[1] A habeas corpus petition challenging gain time forfeiture is premature and fails to state a cause of action when filed while the petitioner remains legally confined under…
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Join FLexlaw to unlock all legal intelligenceAppellant Netherly challenged the Department of Corrections' forfeiture of 2,514 days of earned gain time under section 944.275, Florida Statutes, cla…
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BOARDMAN, EDWARD F., (Ret.) Judge.
Appellant contends the trial court erred in denying his petition for writ of habeas corpus. In his petition, appellant alleged that the Department of Corrections’ application of section 944.275, Florida Statutes (1983), which resulted in the forfeiture of 2,514 days that he had earned on a 1975 sentence, was an unlawful ex post facto application. The trial court denied appellant’s petition, finding that appellant failed to state a cause of action upon which relief could be granted. We affirm.
After reviewing the record we conclude that even if appellant’s allegations are true, he was not entitled to immediate release at the time he filed his petition. On appeal, appellant concedes that his petition was filed prematurely and further concedes that 120 days of gain time he earned while serving a 1979 sentence could have been legally forfeited under section 944.28, Florida Statutes (1983). Because appellant was legally confined at the time he filed his petition for writ of habeas corpus, the trial court was correct in denying the petition for failure to state a cause of action upon which relief could be granted. See Schack v. State, 202 So. 2d 824 (Fla. 1st DCA), cert. dismissed, 204 So. 2d 212 (Fla.1967), cert. denied, 390 U.S. 967, 88 S.Ct. 1078, 19 L.Ed.2d 1171 (1968).
Accordingly, we affirm the trial court’s denial of appellant’s petition for writ of habeas corpus, without prejudice to appellant raising this point in a timely-filed petition.
CAMPBELL, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vallejo v. State, 545 So. 2d 506 (Fla. 5th DCA 1989)…is petition for writ of habeas corpus. The petition does not allege, nor does the record show that the relief requested would entitle the appellant to immediate release. See, Williams v. State, 519 So. 2d 723 (Fla. 5th DCA 1988); Netherly v. Dugger, 513 So. 2d 259 (Fla. 2d DCA 1987) and Brown v. Wainwright, 498 So. 2d 679 (Fla. 1st DCA 1986). Therefore, the trial court’s denial of the writ is AFFIRMED. SHARP, C.J., and DANIEL, J., concur.…
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Williams v. State, 519 So. 2d 723 (Fla. 5th DCA 1988)…Sutton v. Strickland, 485 So. 2d 25 (Fla. 1st DCA 1986); Griggs v. Wainwright, 473 So. 2d 49 (Fla. 1st DCA 1985). Further, the petition fails to allege that the relief requested would entitle the inmate to immediate release. See Netherly v. Dugger, 513 So. 2d 259 (Fla. 2d DCA 1987); Brown v. Wainwright, 498 So. 2d 679 (Fla. 1st DCA 1986). Therefore, the denial of the writ is AFFIRMED. DAUKSCH and ORFINGER, JJ., concur.…
Authorities Cited
- Schack v. State of Fla. & L. L. Wainwright, 202 So. 2d 824 (Fla. 1st DCA 1967)
- Shurney v. Ohio, 390 U.S. 967 (U.S. 1968)
- Boney v. United States, 390 U.S. 967 (U.S. 1968)
- Gorko v. State, 204 So. 2d 212 (Fla. 1967)
- Manning v. State (2 cases), 204 So. 2d 212 (Fla. 1967)