Howarth v. Department of Corrections , 2017 Fla. App. LEXIS 5947 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARK HOWARTH,
Appellant,
v. Case No. 5D16-3598
DEPARTMENT OF CORRECTIONS
AND STATE OF FLORIDA,
Appellees.
________________________________/
Opinion filed April 28, 2017
Appeal from the Circuit Court
for Orange County,
Janet C. Thorpe, Judge.
Mark Howarth, Milton, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee, State of
Florida.
No appearance for other appellee.
PER CURIAM.
Mark Howarth (the defendant) seeks review of the trial court's order dismissing his
petition seeking a writ of habeas corpus. We affirm.
The defendant filed a petition seeking a writ of habeas corpus, arguing that the
information filed against him suffered from incurable defects inasmuch as it charged
lengthy timeframes with respect to the commission of each offense, making it impossible
for him to formulate a defense.
The trial court dismissed the petition, concluding that the defendant failed to serve
his petition on the State within 120 days of filing, as mandated by Florida Rule of Civil
Procedure 1.070. However, the defendant's petition was properly filed pursuant to the
provisions of section 79.01of the Florida Statutes (2015), and rule 1.630 of the Florida
Rules of Civil Procedure (2015). Specifically, rule 1.630 provides that a petitioner is not
required to serve the respondent with the petition, but rather, upon determining that a
habeas corpus petition demonstrates a prima facie case for relief, the trial court issues
the writ of habeas corpus. See Fla. R. Civ. P. 1.630(d); Bard v. Wolson, 687 So. 2d 254(Fla. 1st DCA 1996) ("Florida Rule of Civil Procedure 1.630 and Chapter 79, Florida
Statutes, specify the procedure to be followed in habeas corpus proceedings before the
trial court.").
In Moore v. Ake, 693 So. 2d 697 (Fla. 2d DCA 1997), the Second District reversed
the trial court's order dismissing the appellant's petition for a writ of mandamus based on
the failure to serve the respondents within 120 days. Writing for the court, Judge
Altenbernd explained:
The trial court dismissed Kevin Moore's petition for writ of
mandamus because he failed to serve the respondents within
120 days. We reverse because the trial court had an
obligation under Florida Rule of Civil Procedure 1.630 to
review Mr. Moore's complaint when it was filed, decide
whether it established a prima facie case, and issue an
alternative writ of mandamus if the petition was facially
adequate. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA
1992). The petitioner was not required to serve the
respondent with the complaint and could not serve the
alternative writ until the trial court had performed the tasks
required of it under the rule.
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Id. at 697-698. Thus, the trial court erred in dismissing the defendant's habeas corpus
petition due to his purported failure to ensure that process was served upon the State
within 120 days.
However, such error was harmless because the defendant's petition was properly
dismissed, albeit for a different reason: the defendant previously raised his challenge to
the purportedly defective nature of the information in both his direct appeal and his rule
3.850 proceeding and, thus, he is improperly trying to use the vehicle of habeas corpus
"to seek a second appeal or to litigate issues that . . . were raised in a motion under rule
3.850." Baker v. State, 878 So. 2d 1236, 1241 (Fla. 2004). See Fla. R. Crim. P. 3.850.
Accordingly, we affirm the instant dismissal order because the trial court reached
the correct result, but for the wrong reason. See Sullivan v. State, 913 So. 2d 762, 763
(Fla. 2005) ("Even though the lower court erred in its finding of exceptional circumstances,
we conclude that we should affirm under the 'tipsy coachman' rule because the trial court
reached the right conclusion.").
AFFIRMED.
SAWAYA, PALMER and TORPY, JJ., concur.
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