Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

GOMEZ T. COOK,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-1490

Opinion filed October 25, 2011.

An appeal from the Circuit Court for Alachua County. Martha Ann Lott, Judge.

Gomez T. Cook, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Dixie Daimwood and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.

PER CURIAM.

The order of February 17, 2011, which “re-files” appellant’s petition for a writ of habeas corpus as a motion for post-conviction relief is not an appealable order. Therefore, this appeal is hereby dismissed.

DAVIS, VAN NORTWICK, and CLARK, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CLARY JAMISON,

Appellant,

v.

STATE OF FLORIDA,

STATE ATTORNEY’S OFFICE,

Appellee.

CASE NO. 1D09-6437

Opinion filed October 25, 2011.

An appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge.

Clary Jamison, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

THOMAS, J.

Appellant appeals the trial court’s denial of his petition for writ of habeas corpus, challenging its finding that it lacked jurisdiction, as Appellant was incarcerated in another county. Because we treat the petition as a postconviction motion challenging the legality of his sentence and find that it was time barred, we affirm.

The trial court’s dismissal was based on findings of law, which we review de novo. See Sochor v. State, 883 So. 2d 766, 772 (Fla. 2004) (holding appellate court reviews legal conclusions de novo). We affirm the trial court’s ruling, although not on the grounds stated by the lower court. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (holding that “[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.”).

The Nassau County Circuit Court was correct in denying Appellant’s petition, because it lacked jurisdiction to consider a petition for a writ of habeas corpus when Appellant was not incarcerated in the same county as the court. A petition for a writ of habeas corpus must be filed in the county in which the prisoner is detained. § 79.09, Fla. Stat. We, however, treat Appellant’s petition as a postconviction motion, as it challenges the legality of his sentence, and deny it because it was time barred. Fla. R. Crim. P. 3.850(b) (“motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence became final.”). This bar is jurisdictional and may not be waived. See Ferenc v. State, 697 So. 2d 1262, 1263 (Fla. 5th DCA 1997) (holding that “[i]n the absence of an exception, a motion filed outside the two-year period will not invoke the jurisdiction of the trial court.”). The two-year time limitation for postconviction motions cannot be avoided by the filing of a petition for writ of habeas corpus. See Finley v. State, 394 So. 2d 215, 216 (Fla. 1st DCA 1981) (holding that “[t]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850″).

Appellant is warned that this is his fourth attempt to obtain collateral relief, and it is a frivolous filing. As this court noted in Clift v. State, 43 So. 3d 778, 778 (Fla. 1st DCA 2010), filings without merit or frivolous filings may result in Appellant’s referral to the Department of Corrections for disciplinary procedures in accordance with section 944.279, Florida Statutes.

AFFIRMED.

ROBERTS and CLARK, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

HENRY JAMES WIMBERLY,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-3932

Opinion filed October 25, 2011.

Petition Seeking Belated Appeal — Original Jurisdiction. Henry James Wimberly, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition is granted and Henry James Wimberly is hereby afforded belated appeal from judgment and sentence in the Circuit Court for Leon County, case number 2005-CF-431. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

THOMAS, ROBERTS, and CLARK, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

RANDOLPH C. CLARK,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-4244

Opinion filed October 25, 2011.

An appeal from the Circuit Court for Duval County. David M. Gooding, Judge.

Elizabeth Yerington, Assistant Regional Conflict Counsel, Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 11, 2011, the Court has determined that the notice of appeal failed to timely invoke its jurisdiction. Accordingly, the appeal is dismissed. The dismissal is without prejudice to the appellant’s right to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

BENTON, C. J., VAN NORTWICK, and SWANSON, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JUSTIN SAFFERFIELD,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-4597

Opinion filed October 25, 2011.

Petition for Writ of Mandamus — Original Jurisdiction. Justin Safferfield, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for writ of mandamus, to the extent it challenges pretrial actions by counsel and the trial judge, is premature because those issues can be raised on appeal from final judgment. The petition is therefore denied in part. Insofar as the petition complains of former counsel’s failure to provide petitioner with records upon request, the petition is also denied but without prejudice to petitioner’s right to seek relief in circuit court. See Dumas v. Marrero, 864 So. 2d 531 (Fla. 5th DCA 2004).

PETITION DENIED.

THOMAS, ROBERTS, and CLARK, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

KARREN PLAINES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-4323

Opinion filed October 25, 2011.

An appeal from the Circuit Court for Duval County. Virginia Norton, Judge.

Michael L. Rhodes, Crestview, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 17, 2011, the Court has determined that its jurisdiction was not timely invoked. Contrary to the appellant’s assertion, the Motion to Mitigate Sentence did not delay rendition of the Judgment and Sentence. Fla. R. App. P. 9.020(h). Accordingly, the appeal is hereby DISMISSED.

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL FILE MOTION FOR REHEARING

TIME EXPIRES AND DISPOSITION THEREOF IF FILED

LARRY T. SCOTT,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-5225

Opinion filed October 25, 2011.

Petition for Writ of Mandamus — Original Jurisdiction. Larry T. Scott, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

Larry T. Scott petitions this court for a writ of mandamus, complaining that the circuit court’s order on his postconviction motion failed to address ground one, subclaim five and ground eight, subclaim four raised in the motion. The circuit court, however, has entered a final order denying postconviction relief which expressly addresses many of petitioner’s claims. The order is a final order. All claims, whether expressly addressed by the circuit court or not, were denied. It is not necessary for the lower tribunal to address every claim or subclaim with particularity in its final order. See, e.g., Bailem v. State, 984 So. 2d 604 (Fla. 3d DCA 2008); see also Holley v. State, 859 So. 2d 568 (Fla. 5th DCA 2003). Accordingly, the petition for writ of mandamus is denied.

PETITION DENIED.

THOMAS, ROBERTS, and CLARK, JJ., CONCUR.

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