GARY BARNARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gary Barnard appealed the denial of his sixth postconviction habeas corpus petition. The Florida Court of Appeal affirmed the denial, finding the petition both untimely and procedurally barred because the issues raised were collateral attacks that could have been brought on direct appeal or in an earlier 3.850 motion.
The court affirmed the denial of Barnard's habeas corpus petition, holding that it was both untimely and procedurally barred because the issues raised were collateral attacks that could have been raised on direct appeal or in his earlier 3.850 motion for postconviction relief.
[1] Habeas corpus may not be used to raise issues that could have been raised on direct appeal.
[2] Habeas corpus may not be used to file successive motions for postconviction relief.
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Join FLexlaw to unlock all legal intelligence“Habeas corpus may not be used to file successive 3.850 motions or to raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850.”
Establishes the legal principle that habeas corpus cannot circumvent procedural rules limiting successive postconviction motions.
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Join FLexlaw to unlock all legal intelligenceBarnard was convicted in 1996 of aggravated battery as a lesser included offense of attempted first degree murder, and burglary with an assault, and w…
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ROTHENBERG, Judge.
The defendant, Gary Barnard, was convicted of aggravated battery as a lesser included offense of attempted first degree murder, and burglary with an assault, for which he was sentenced as an habitual offender. Since his convictions in 1996, he has filed the following: (1) a direct appeal, which was affirmed on May 20, 1998, and mandate issued on June 5, 1998, see Barnard v. State, 717 So. 2d 1021 (Fla. 3d DCA 1998); (2) a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging various claims of ineffective assistance of trial counsel plus claimed errors at trial, which was denied on March 11, 1999, and affirmed by this court on June 30, 1999, see Barnard v. State, 740 So. 2d 546 (Fla. 3d DCA 1999); (3) a petition for writ of habeas corpus, which was denied by this court on December 15, 1999, see Barnard v. Moore, 748 So. 2d 278 (Fla. 3d DCA 1999); (4) a petition for federal writ of habeas corpus, which was denied on March 21, 2003; and (5) an appeal with the United States Court of Appeals, which was dismissed.
The instant appeal from the denial of a petition for writ of habeas corpus is Barnard’s sixth postconviction proceeding and, as such, is both untimely and procedurally barred. His allegations regarding the charging document and jury instructions are clearly collateral attacks that could have been raised on direct appeal or in a 3.850 postconviction relief motion. Habeas corpus may not be used to file successive 3.850 motions or to raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850. See Baker v. State, 878 So. 2d 1236, 1245-46 (Fla.2004).
Affirmed.
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Shird T. Myrick v. Inch, 303 So. 3d 269 (Fla. 2d DCA 2020)…The preferred procedure when an inmate has sought the wrong remedy in the wrong court is to rename the petition and transfer the case to the correct court. The circuit court was correct in its analysis of Mr. Myrick's claim, see Barnard v. State, 949 So. 2d 250, 251 (Fla. 3d DCA 2007) (holding that a challenge to a charging document raised in a habeas petition should have been raised on direct appeal or in a postconviction motion), and so its order transferring Mr. Myrick's petition to Dade before the t…
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Hudson v. State, 105 So. 3d 621 (Fla. 3d DCA 2013)…PER CURIAM. Affirmed. See, e.g., Barnard v. State, 949 So. 2d 250, 251 (Fla. 3d DCA 2007) (“Habeas corpus may not be used to file successive 3.850 motions or to raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850.” (citing Baker v. State, 878 So. 2d [*622] 1236…
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Anicet v. Jones, 245 So. 3d 992 (Fla. 3d DCA 2018)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baker v. State, 878 So. 2d 1236 (Fla. 2004)