James Welch v. State of Florida Julie L. Jones, Secretary etc. , 245 So. 3d 862 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-1603
_____________________________
JAMES WELCH,
Appellant,
v.
STATE OF FLORIDA; JULIE L.
JONES, Secretary, Department of
Corrections,
Appellees.
_____________________________
On appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Jr., Judge.
February 20, 2018
B.L. THOMAS, C.J.
Appellant challenges the trial court’s order transferring his
petition for writ of habeas corpus to the sentencing court, because
the petition challenges Appellant’s judgment and/or sentence.
Because Appellant’s petition is a time-barred collateral attack on
his sentence, we reverse the trial court’s order and remand with
instructions to dismiss.
In his petition for writ of habeas corpus, all of Appellant’s
claims for relief were based on violations of his constitutional due
process rights, and he summarized his petition by stating he was
“denied his 5th, 6th, and 14th Amendment rights to due process
of law and hearing before an impartial jury or fact finder.” Such
claims must be made by motion pursuant to Florida Rule of
Criminal Procedure 3.850.
“The remedy of habeas corpus is not available in Florida to
obtain the kind of collateral postconviction relief available by
motion in the sentencing court pursuant to rule 3.850.” Baker v.
State, 878 So. 3d 1236, 1245 (Fla. 2004). Dismissal of a petition
for writ of habeas corpus, rather than transfer, is appropriate
when the petitioner seeks “the kind of collateral postconviction
relief available through a motion filed in the sentencing court,
and which (1) would be untimely if considered as a motion for
postconviction relief under rule 3.850 . . . .” Zuluaga v. State, Fla.
Dep’t of Corr., 32 So. 3d 674, 677 (Fla. 1st DCA 2010) (quoting
Baker, 878 So. 2d at 1246). Appellant’s sentence became final on
December 9, 2010, and he filed his petition on March 7, 2017,
long after the two-year window under rule 3.850 had closed. We
therefore reverse the trial court’s order and remand with
instructions to dismiss Appellant’s petition.
REVERSED and REMANDED.
WOLF and WINOKUR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
James Welch, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Barbara Debelius Assistant
Attorney General, Tallahassee; Kenneth S. Steely, General
Counsel, Department of Corrections, Tallahassee, for Appellees.
2