Opinion
No. 1D21-2070.
01-25-2023
George K. SUSICK, Appellant, v. STATE of Florida, Appellee.
George K. Susick, pro se, Appellant. Ashley Moody , Attorney General, and Daren L. Shippy , Assistant Attorney General, Tallahassee, for Appellee.
George K. Susick, pro se, Appellant.
Ashley Moody , Attorney General, and Daren L. Shippy , Assistant Attorney General, Tallahassee, for Appellee.
Long, J.
George Susick seeks review of a trial court order dismissing his petition for writ of habeas corpus. Susick is a federal prisoner with a state detainer against him for failing to appear at a violation of probation hearing. Susick seeks to compel the trial court to either resolve the violation of probation case by transferring him from federal to state custody or set aside the detainer. We affirm the trial court because it was unable to grant Susick relief.
The proper vehicle to challenge a detainer is a petition for writ of mandamus. Moore v. State, 137 So.3d 611, 613 (Fla. 4th DCA 2014). We do not hold this faulty designation against Susick because "no cause shall be dismissed because an improper remedy has been sought." Art. V, § 2(a), Fla. Const.
A detainer is an informal request filed by a criminal justice agency asking the institution where the prisoner is incarcerated "either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent." Gethers v. State, 838 So.2d 504, 507 (Fla. 2003). "Generally, under such circumstances, a prisoner is not in custody pursuant to the detainer. Only if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer." Id.
Susick claims he is not being considered for certain federal prison programs and is being held at a different custody level due to the detainer. Susick has years left on his federal sentence. We have no power to set aside a state detainer because it does not carry the force of law. Only liberty interests implicate the due process clause, and a detainer on its own does not affect liberty. See John v. Crews, 149 So.3d 149, 151 (Fla. 1st DCA 2014) (denying relief because the prisoner "could not demonstrate any constitutionally protected liberty interest"). A detainer is a request, not an order, and concerns agreement between two executive branch agencies. Susick may be losing out on benefits in federal prison, but that is a result of executive discretion that we cannot examine.
We also have no power to interfere with federal custody decisions. See Saunders v. State, 837 So.2d 433 (Fla. 2d DCA 2002). There is no mechanism by which Susick can force the circuit court to dispose of the violation of probation while he is in prison on other charges. Burgess v. State, 913 So.2d 1253 (Fla. 2d DCA 2005). For these reasons we AFFIRM.
Susick's motion to reconstrue his petition is denied.
Bilbrey and Winokur, JJ., concur.