BENJAMIN WASHINGTON, PETITIONER,
v.
RICHARD DUGGER, SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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Petitioner's habeas corpus petition alleging appellate counsel incompetency was denied, but the court permitted him to pursue a Rule 3.850 motion to challenge an allegedly illegal general sentence.
A petitioner alleging appellate counsel incompetency may not use habeas corpus to challenge an illegal sentence when Rule 3.850 provides an adequate remedy.
[1] An illegal sentence may be challenged by motion under Rule 3.850 Florida Rules of Criminal Procedure at any time, and habeas corpus is not the appropriate remedy when suc…
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Join FLexlaw to unlock all legal intelligenceBenjamin Washington sought habeas corpus relief, claiming his appellate counsel failed to raise issues that his sentence was an illegal general senten…
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BARKDULL, Judge.
By this Petition for Writ of Habeas Corpus, the petitioner is alleging incompetency of appellate counsel. On appeal from the trial court’s order revoking the petitioner’s sentence to community control, the petitioner alleges that appellate counsel failed to raise as issues in the appellate court, that the sentence imposed was an illegal general sentence, and that the evidence produced before the trial court was insufficient to sustain the finding of violation of his sentence to community control.1
In reviewing this matter, it appears that the only act of appellant’s counsel that might possibly have merit is failure to raise the issue of a general sentence.
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. Therefore we deny the petition for writ of habeas corpus without prejudice to the filing of a 3.850 motion in the trial court to correct an improper general sentence.
Relief sought denied.
. The propriety of the finding of violation of community control is a fact question that was determined adverse to the petitioner on his plenary appeal. See Washington v. State, 573 So. 2d 847 (Fla. 3d DCA 1991). Therefore this allegation of incompetency of appellate counsel is without merit.
Cases With Similar Vibessemantic neighbors from the corpus
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Leichtman v. Singletary, 674 So. 2d 889 (Fla. 4th DCA 1996)…he issues that should be raised by a motion for post-conviction relief, not by petition for ha-beas corpus. Patterson v. State, 664 So. 2d 31, 32 (Fla. 4th DCA 1995), rehearing and rehearing en banc denied, (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 habea…
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Howarth v. State, 651 So. 2d 206 (Fla. 5th DCA 1995)…Hardwick v. Dugger, 648 So. 2d 100 (Fla. 1994). As to the jail credit issue, habeas corpus is not available to correct sentencing errors where an adequate remedy is available under Florida Rule of Criminal Procedure 3.850. See Washington v. Dugger, 579 So. 2d 922 (Fla. 3d DCA 1991). His petition should be denied.…