ISRAEL VIERRA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the circuit court erred in dismissing the petition for failure to exhaust administrative remedies without first determining the proper venue.
Israel Vierra appealed the summary dismissal of his habeas corpus petition, which claimed improper calculation of gain time. The circuit court dismiss…
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[*589] CASANUEVA, Judge.
Israel Vierra appeals the summary dismissal of his petition for writ of habeas corpus filed in the Circuit Court of the Thirteenth Judicial Circuit in and for Hills-borough County. We reverse and remand for further proceedings.
In his petition, Mr. Vierra claimed that he was eligible for immediate release from his imprisonment at Zephyrhills Correctional Institution because the Florida Department of Corrections had improperly calculated his gain time. The circuit court summarily dismissed the petition because Mr. Vierra had not sufficiently demonstrated he had exhausted all administrative remedies. The circuit court also cited Bush v. State, 945 So. 2d 1207 (Fla.2006), and ruled that if Mr. Vierra chose to refile his petition after exhausting all administrative remedies he should do so in Leon County.
We conclude that the court erred by failing to first consider whether the petition was properly filed in Hillsborough County. “[A] habeas petition filed in circuit court alleging entitlement to immediate release ‘shall be filed with the clerk of the circuit court of the county in which the prisoner is detained.’ ” Bush, 945 So. 2d at 1213 n. 11 (quoting § 79.09, Fla. Stat. (2005)). Because Mr. Vierra was incarcerated in Pasco County the Hillsborough County court should have transferred the petition to the circuit court in Pasco County without consideration of the petition’s facial sufficiency or its merits. Moreover, pursuant to Bush and section 79.09, the court erred in directing Mr. Vierra to refile his petition if he chose in Leon County.
Accordingly, we reverse the order dismissing the petition and remand with directions to the circuit court to transfer the proceeding to the circuit court for the county in which Mr. Vierra is currently incarcerated.
Reversed and remanded for further proceedings.
SILBERMAN and KELLY, JJ„ Concur.
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Coney v. State, 995 So. 2d 1038 (Fla. 4th DCA 2008)…e argued in this motion. We reviewed the petition and found it failed to establish a basis for relief, but transferred the petition to the appropriate venue. See Bush, 945 So. 2d at 1213 n. 11; § 79.09, Fla. Stat. (2007), see, e.g., Vierra v. State, 980 So. 2d 588 (Fla. 2d DCA 2008). Coney has repeatedly claimed that he is illegally incarcerated and entitled to immediate release. These serious allegations receive expedited consideration because [*1040] this court strives to prevent any person from being ille…
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Spradley v. Parole Comm'n, 198 So. 3d 642 (Fla. 2d DCA 2015)…om the essential requirements of law in dismissing the mandamus petition. See Bush, 945 So. 2d at 1214-15 (holding transfer to proper venue rather than dismissal was preferred remedy where mandamus petition filed in improper venue); Vierra v. State, 980 So. 2d 588, 589 (Fla. 2d DCA 2008); Sullivan, 920 So. 2d at 107; Gibson v. Fla. Parole Comm’n, 895 So. 2d 1291 (Fla. 5th DCA 2005) (“Where the correct remedy and venue are apparent to the trial judge, it serves judicial economy to transfer the case rather than…
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Batista v. State, 993 So. 2d 93 (Fla. 5th DCA 2008)…1207, 1213 n. 11 (Fla.2006). However, if jurisdiction had been proper only in Lake County, then the trial court should have transferred the petition to Lake County for consideration on the merits, rather than dismiss it. See, e.g., Vierra v. State, 980 So. 2d 588 (Fla. 2d DCA 2008) (reversing order that dismissed habeas petition and remanding for transfer to the circuit court having jurisdiction over the correctional facility in which appellant was then housed); Yeik v. Fla. Parole Comm’n, 776 So. 2d 1037 (F…
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- Corbblin Bush v. State, 945 So. 2d 1207 (Fla. 2006)