Opinion
No. 1D98-3956.
Opinion filed February 16, 2000.
Appeal from the Circuit Court for Taylor County, Judge James Roy Bean.
Carl E. Williams, pro se, for Appellant.
Sheron Wells, Assistant General Counsel, Tallahassee, for appellee Florida Department of Corrections.
Carl E. Williams petitions this Court seeking enforcement of mandate or any other appropriate relief. We dismiss the petition.
Williams initially filed a petition for writ of habeas corpus in the Third Judicial Circuit of Florida. The trial judge dismissed the petition. On appeal, this Court remanded the case to the trial court for consideration on the merits. During pendency of the appeal, appellant was transferred to a correctional institution in Jackson County. Accordingly, the trial judge on remand dismissed the petition based on lack of jurisdiction.
As noted in Magnus v. State, 738 So.2d 446, 447 (Fla. 4th DCA 1999), "When it is apparent to a trial court that a petition for habeas corpus has been filed in the wrong court, it could save an unnecessary appeal which could substantially delay the release of a wrongfully incarcerated person, if the trial court would transfer the petition to the proper court." Although the trial judge below could have transferred Williams' petition to the appropriate circuit court, the expedient course of action at this time would be for Williams to refile his petition for writ of habeas corpus in the circuit court which presently has jurisdiction.
Accordingly, the petition is dismissed without prejudice to appellant filing a petition for writ of habeas corpus in the circuit court of the county in which he is incarcerated.
BARFIELD, C.J. and WEBSTER, J., CONCUR. BENTON, J., DISSENTS, WITH OPINION
I respectfully dissent. Once the court below obtained jurisdiction over the respondent, respondent's removing the petitioner for writ of habeas corpus from the court's territorial jurisdiction could not divest the court of jurisdiction. Otherwise "the great writ" could hardly stand as the bulwark against unlawful deprivation of liberty article 1, section 13 of the Florida Constitution contemplates.
Although section 79.09, Florida Statutes (1999), can be viewed as authority for a change of venue, see Mathis v. Wainwright, 484 So.2d 96 (Fla. 1st DCA 1986), I would grant the petition seeking enforcement of the mandate we issued in the wake of our earlier decision remanding to the Third Circuit "for consideration of the petition on the merits." Williams v. Florida Parole Comm'n, 739 So.2d 747, 747 (Fla. 1st DCA 1999).