GARY POWELL, PETITIONER,
v.
FLORIDA DEPARTMENT OF CORRECTIONS AND FLORIDA PAROLE COMMISSION, RESPONDENTS
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Gary Powell petitioned for habeas corpus relief after the circuit court denied his motion for relief from judgment regarding a forfeiture of gain time by the Florida Department of Corrections. The appellate court denied the habeas corpus petition for lack of jurisdiction, holding that Powell had an adequate legal remedy available through timely appeal but failed to invoke it.
The appellate court lacks jurisdiction to grant habeas corpus relief because Powell had an adequate legal remedy available—namely, timely appeal under Florida Rule of Appellate Procedure 9.130(a)(5)—but failed to timely invoke it within the 30-day period required for appeals.
[1] A writ of habeas corpus is not available when the petitioner had an adequate legal remedy by appeal but failed to exercise it.
[2] A court lacks jurisdiction to review a trial court's order denying a motion for relief from judgment if the appeal period has expired.
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Join FLexlaw to unlock all legal intelligence“The extraordinary remedy of habeas corpus cannot be invoked where the petitioner had available an adequate legal remedy by appeal but failed to avail himself of that remedy.”
States the primary legal principle preventing habeas corpus relief when adequate legal remedies exist
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Join FLexlaw to unlock all legal intelligencePowell initially filed an untimely appeal challenging a forfeiture of gain time by the Florida Department of Corrections, claiming he did not timely r…
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PER CURIAM.
Gary Powell unsuccessfully petitioned the circuit court to challenge a forfeiture of gain time by the Florida Department of Corrections. His appeal was untimely and was therefore dismissed without prejudice to his right to seek relief from judgment in the trial court, as he claimed he had not timely received a copy of the circuit court’s order when it was issued. Powell v. Florida Department of Corrections, 727 So. 2d 1103 (Fla. 1st DCA 1999).
Powell’s motion for relief from judgment was denied by the circuit court by order of April 28, 1999. He now petitions this court for a writ of habeas corpus and moves for leave to file a petition for writ of habeas corpus, arguing that the circuit court acted contrary to the directive of this court in the earlier appeal when it denied his motion for relief from judgment. However, our earlier opinion did not indicate that Powell was entitled to such relief, only that his remedy, if any, was to so move the trial court. We are also without jurisdiction to review the correctness of the circuit court’s action. The order denying motion for relief from judgment was appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) but Powell did not timely invoke this court’s jurisdiction. The extraordinary remedy of habeas corpus cannot be invoked where the petitioner had available an adequate legal remedy by appeal but failed to avail himself of that remedy. Nor can we treat this petition and/or motion as invoking the court’s appellate jurisdiction because they were filed well after the 30 day period for appealing the circuit court’s order had expired. Accordingly, we must deny the petition for habeas corpus and the accompanying motion on grounds that we lack jurisdiction to entertain them.
PETITION FOR WRIT OF HABEAS CORPUS DENIED; MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS DENIED.
BARFIELD, C.J, ERVIN and WOLF, JJ., concur.
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Freddick Davis v. Kirkland, 881 So. 2d 1166 (Fla. 1st DCA 2004)…PER CURIAM. DISMISSED. See Powell v. Florida Department of Corrections, 741 So. 2d 1201 (Fla. 1st DCA 1999). BOOTH, WEBSTER and DAVIS, JJ., concur.…
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Mortimer v. State, 922 So. 2d 1104 (Fla. 4th DCA 2006)…lin v. Mayo, 88 So. 2d 918 (Fla.1956) (explaining that purpose of ha-beas corpus is to test the legality of a restraint upon liberty). Habeas corpus does not lie where the petitioner has other adequate remedies at law. Powell v. Fla. Dept. of Corr., 741 So. 2d 1201 (Fla. 1st DCA 1999); Moore v. State, 784 So. 2d 617 (Fla. 5th DCA 2001). For these reasons, the petition for writ of habeas corpus is dismissed. POLEN, HAZOURI and MAY, JJ., concur.…
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C.W. v. Currie, 962 So. 2d 976 (Fla. 1st DCA 2007)…nty lacked jurisdiction to commit him to the custody of the Department of Juvenile Justice. However, petitioner did not timely appeal the commitment order and we therefore find that the petition is proeedurally barred. Powell v. Fla. Dep’t of Corr., 741 So. 2d 1201 (Fla. 1st DCA 1999). We find petitioner’s reliance on Alachua Regional Juvenile Detention Center v. T.O., 684 So. 2d 814 (Fla.1996) and Murray v. Regier, 872 So. 2d 217 (Fla.2002) to be misplaced because neither of those petitioners was detained pur…
Authorities Cited
- Powell v. Fla. Dep't OF Corr. & Fla. Parole Comm'n, 727 So. 2d 1103 (Fla. 1st DCA 1999)