Gray v. Department of Corrections , 2016 Fla. App. LEXIS 17894 ( 2016 )

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
LESTER GRAY,
Appellant,
v. Case No. 5D16-2379
DEPARTMENT OF CORRECTIONS
AND STATE OF FLORIDA,
Appellees.
________________________________/
Opinion filed December 2, 2016
Appeal from the Circuit Court
for Orange County,
Keith F. White , Judge.
Lester Gray, Perry, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Wesley Heidt, Assistant
Attorney General, Daytona Beach, for
Appellee, State of Florida.
No appearance for other Appellee.
PER CURIAM.
Lester Gray appeals the denial of his petition for habeas corpus. We affirm.
Gray, who was convicted in the Circuit Court of Orange County, is currently
incarcerated in Taylor County. The trial court incorrectly denied Gray’s petition,
concluding that it should have been filed in Taylor County. As the Third District explained
more than ten years ago in Broom v. State, 907 So. 2d 1261, 1262 (Fla. 3d DCA 2005):
The circuit court of the county in which a defendant is
incarcerated has jurisdiction to consider a petition for writ of
habeas corpus when the claims raised in the petition concern
issues regarding his incarceration, but not when the claims
attack the validity of the judgment or sentence. Only the court
in which the defendant was convicted and sentenced has
jurisdiction to consider collateral attacks on a judgment or
sentence, and such an attack must be brought pursuant to
Rule 3.800 or 3.850, not by petition for writ of habeas corpus.
(Internal citations omitted). Because the petition collaterally attacks the validity of Gray’s
conviction and sentence, Orange County had jurisdiction to review the habeas petition.
Notwithstanding, we affirm the denial of the habeas petition because the trial judge
reached the right result, albeit for the wrong reason. Gray has previously filed several
postconviction motions. An extraordinary writ petition is not a second appeal, and cannot
be used to litigate or relitigate issues that were or could have been raised on direct appeal
or in prior postconviction proceedings. See Denson v. State, 775 So. 2d 288, 289 (Fla.
2000). Habeas corpus may not be used to file successive rule 3.850 motions or to raise
issues that would be untimely if considered as a motion for postconviction relief under
that rule. Baker v. State, 878 So. 2d 1236, 1245-46 (Fla. 2004). Any concerns that Gray
had regarding his conviction and sentence needed to have been raised in his previous
postconviction motions.
AFFIRMED.
PALMER, ORFINGER and EVANDER, JJ., concur.
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