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Borinstein v. State , 893 So. 2d 687 ( 2005 )


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  • 893 So. 2d 687 (2005)

    Joel BORINSTEIN, Appellant,
    v.
    STATE of Florida, Appellee.

    No. 5D04-1610.

    District Court of Appeal of Florida, Fifth District.

    February 18, 2005.

    Joel Borinstein, pro se.

    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

    SHARP, W., J.

    Borinstein appeals from the denial of his petition for habeas corpus by the circuit court in the Fifth Judicial Circuit in Marion County, Florida, where he is incarcerated, after having been convicted of murder and sentenced to life with a 25-year minimum mandatory sentence. He was tried, convicted and sentenced in Okeechobee County, in the 19th Judicial Circuit, *688 and his appeal was affirmed per curiam by the Fourth District Court of Appeal.[1] We affirm.

    The circuit court below ruled that the argument presented in Borinstein's petition lacked merit. In his petition, Borinstein claims the information that charged him with murder lacked a crucial element and thus was void and failed to charge him with a crime under this state's criminal code. It also ruled that habeas corpus is not an available remedy to obtain collateral post-conviction relief, which can only be obtained by filing an appropriate and timely motion pursuant to Florida Rule of Criminal Procedure 3.850 or 3.800, in the sentencing court — not the court located in the circuit in which the petitioner is being held in custody.

    We concur with the later reason. See Baker v. State, 878 So. 2d 1236 (Fla.2004); Washington v. State, 876 So. 2d 1233 (Fla. 5th DCA 2004); Collins v. State, 859 So. 2d 1244 (Fla. 5th DCA 2003). We also caution Borinstein against filing successive petitions and motions seeking to raise this same issue.[2] Borinstein previously filed a similar habeas petition in the 19th Judicial Circuit, which was denied on January 9, 2004, on the merits.

    AFFIRMED.

    MONACO and TORPY, JJ., concur.

    NOTES

    [1] Borinstein v. State, 613 So. 2d 39 (Fla. 4th DCA 1993).

    [2] See Steele v. State, 859 So. 2d 524 (Fla. 5th DCA 2003); Harvey v. State, 836 So. 2d 1102 (Fla. 5th DCA 2003); Davis v. State, 705 So. 2d 133 (Fla. 5th DCA 1998).