DAVID MOORE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Moore appealed the dismissal of his habeas corpus petition challenging a detainer placed on him by the Martin County Sheriff's Office based on a contempt sentence imposed in 1995. The court reversed and remanded, instructing the trial court to treat the petition as a mandamus petition and issue an order to show cause to the proper parties.
The court held that Moore should have sought a writ of mandamus rather than habeas corpus since he did not allege entitlement to immediate release. The court reversed the dismissal and remanded for the trial court to treat the petition as a mandamus petition and issue an order to show cause to both the State and the Sheriff's Office.
[1] A petition for writ of habeas corpus is a proper procedural vehicle to challenge an unlawful detainer.
[2] A petition for writ of mandamus, rather than habeas corpus, is the appropriate remedy to seek removal of a detainer when immediate release is not alleged.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it [wa]s error to direct that a sentence commence at the conclusion of a future sentence yet to be announced”
Establishes that sentencing a person to consecutive time when no active sentence exists at the time of sentencing is illegal
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Join FLexlaw to unlock all legal intelligenceIn April 1995, while Moore was in jail awaiting trial on escape charges, he was found in contempt of court and sentenced to 179 days in county jail to…
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David Moore, Jr. appeals the trial court’s orders dismissing his petition for writ of habeas corpus and striking his motion for rehearing. We reverse and remand with instructions.
In 2012, Moore filed the instant petition for writ of habeas corpus, challenging the detainer1 placed on him by the Martin County Sheriffs Office. Moore alleged in his petition that on April 17, 1995, while he was in jail awaiting trial on charges in connection with a May 1994 escape attempt, he was found in contempt of court. As punishment for the contempt, Moore was sentenced to serve 179 days in the county jail, to be served consecutively to any active sentence. Moore alleges that at the time, he had no active sentences. The Martin County Sheriffs Office filed a detainer on Moore with the Department of Corrections (“DOC”) regarding the contempt sentence. Moore remained in county jail pending trial for more than 179 days after the contempt sentence was imposed. Then, on February 8, 1996, following a jury trial on his pending escape charges, Moore was found guilty of escape and two other charges. He was sentenced to thirty years as a habitual felony offender for the escape charge, and to time served on the other two charges.
In the habeas petition, Moore incorrectly named the State as the respondent. Contending that he was not serving an active sentence at the time the contempt sentence was imposed, he argued that it was illegal to run the contempt sentence consecutively to any sentence he might receive in the future, citing to Jarrett v. State, 665 So.2d 381 (Fla. 5th DCA 1995) (finding sentence for contempt to be illegal because “it [wa]s error to direct that a sentence commence at the conclusion of a future sentence yet to be announced”). He further argued that because he spent more than 179 days in jail after the contempt sentence was imposed and prior to the sentencing on the escape and other two charges, his contempt sentence was fully served prior to being sentenced on the other charges; therefore, the detainer was unlawful. Moore cited Kerklin v. Godwin, 747 So.2d 956 (Fla. 2d DCA 1999), for the proposition that a habeas petition is a proper way to challenge a detainer.
The trial court dismissed the habeas petition, stating it did not have jurisdiction to force DOC to correctly apply Moore’s sentence. Moore filed a timely sworn motion for rehearing, explaining that he was seeking to have the court that imposed the *613contempt sentence issue an order stating that the sentence was served in full and quashing the detainer. The trial court struck the motion for rehearing, concluding that it lacked jurisdiction to address the motion because Moore had filed a notice of appeal, therefore abandoning his motion for rehearing. This appeal followed.
We agree with the State that because Moore did not allege he was entitled to immediate release, he should have sought relief by filing a petition for writ of mandamus; furthermore, he should have named the Martin County Sheriffs Office as the proper party respondent. See Perkins v. State, 766 So.2d 1173, 1175 (Fla. 5th DCA 2000) (“Since [the defendant] ... alleged that he [wa]s entitled ... to removal of the detainer, his remedy, if any is proper, would appear to be mandamus ... filed in the circuit court having jurisdiction over the person who had lodged the de-tainer.”). We reverse the dismissal and remand for the trial court to treat the habeas petition as a petition for writ of mandamus. However, since Moore named the State as the respondent in his habeas petition, the sheriffs office had no opportunity to respond. Because his petition sufficiently alleged that the Martin County Sheriffs Office placed the detainer, on remand, the trial court is directed to issue an order to show cause to both the State and the sheriffs office as to why the petition should not be granted. See Jenkins v. State, 957 So.2d 20, 22-23 (Fla. 5th DCA 2007).
Reversed and Remanded with instructions.
STEVENSON, GERBER and CONNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Crockett v. State, 206 So. 3d 742 (Fla. 1st DCA 2016)…equest filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.’” Moore v. State, 137 So. 3d 611, 612 n. 1 (Fla. 4th DCA 2014) (quoting Gethers v. State, 838 So. 2d 504, 507 (Fla.2003)). “Detainers informally put officials on notice that the defendant is wanted in another jurisdiction.” Gethers, 838 So. 2d at 507. Pursuant to the Interstate Ag…
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Clapp v. State, 160 So. 3d 107 (Fla. 4th DCA 2015)…now withdrawn VOP affidavits. Our affir-mance is without prejudice for appellant to request that the arrest warrants be vacated and, if necessary, to pursue mandamus relief to compel the sheriff to remove the detainer. See generally Moore v. State, 137 So. 3d 611, 613 (Fla. 4th DCA 2014); Perkins v. State, 766 So. 2d 1173, 1175 (Fla. 5th DCA 2000) (explaining that a mandamus action filed in the circuit court with jurisdiction over the party improperly lodging the detainer is the proper remedy [*108] where th…
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Susick v. State (Fla. 1st DCA 2023)…k seeks to compel the trial court to either resolve the violation of probation case by transferring him from federal to state custody or set aside the 1 The proper vehicle to challenge a detainer is a petition for writ of mandamus. Moore v. State, 137 So. 3d 611, 613 (Fla. 4th DCA 2014). We do not hold this faulty designation against Susick because “no cause shall be dismissed because an improper remedy has been sought.” Art. V, § 2(a), Fla. Const. detainer. We affirm the trial court because it was una…
Authorities Cited
- Gethers v. State, 838 So. 2d 504 (Fla. 2003)
- Carchman v. Nash, 473 U.S. 716 (U.S. 1985)
- Fulton T. Perkins v. State, 766 So. 2d 1173 (Fla. 5th DCA 2000)
- State v. Alyse Cohen Paris and Mark Paris, 665 So. 2d 381 (Fla. 4th DCA 1996)
- Jenkins v. State, 957 So. 2d 20 (Fla. 5th DCA 2007)
- Kerklin v. Godwin, 747 So. 2d 956 (Fla. 2d DCA 1999)