Petitions for Writs of Mandamus, Prohibition, Quo Warranto, and/or Habeas Corpus: APPELLATE PROCEDURE – Improper relief – A petition for extraordinary relief is not a second appeal and cannot be used to litigate issues that could have been raised on direct appeal or in a postconviction motion.  A petition for writ of habeas corpus is used to determine whether an individual is legally detained. – Petition for Writ of Habeas Corpus dismissed.  Kelly v. Pinellas County Sheriff,  No. CRC 08-00056 APANO (Fla. 6th Cir.App.Ct. Sep. 5, 2008).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

LAWRENCE KELLY

 

            Petitioner,

 

v.                                                                                                                                          Case No. CRC 08-00056 APANO

                                                                        UCN522007MM013714XXXXNO

 

JIM COATS, SHERIFF OF

PINELLAS COUNTY

 

            Respondent.

___________________________________/

 

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

 

            THIS MATTER is before the Court on the petitioner, Lawrence Kelly’s, Petition for a Writ of Habeas Corpus.  In his petition, petitioner asserts in part, that errors were made in trial court proceedings, which included a jury trial.  Petitioner was found guilty and sentence imposed.  Petitioner has an appeal pending on those matters.  Petitioner is presently incarcerated on allegations that he violated his probation.

            Petitioner fails to state a preliminary basis for relief.  A petition for extraordinary relief is not a second appeal and cannot be used to litigate or relitigate issues which were or could have been raised on direct appeal or in prior postconviction proceedings.  Herndon v. State, 796 So2d 534 (Fla. 2001).  Further, in regard to the pending violation of probation proceeding, generally the object of a writ of “habeas corpus” is not to determine whether a person has committed a crime or justice of his detention on the merits, but to determine whether he is legally imprisoned or restrained of his liberty, and writ may not be used to test sufficiency of evidence upon which a charge has been based, or to review sufficiency of a substantive defense. Sylvester v. Tindall, 154 Fla. 663, 18 So.2d 892 (1944).  The proper office of “habeas corpus” is, not to obtain a ruling on a question of evidence before a trial is had, but to determine whether petitioner is being illegally detained in sheriff's custody. Shelton v. Coleman, 136 Fla. 625, 187 So. 266 (1939).  In the present case there is no question that the trial court issuing process had jurisdiction of Petitioner's person and power to issue the criminal process.  The petition fails to state a preliminary basis for relief and is denied.

            IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is denied.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida on September 5, 2008.

 

 

                                                            _____________________________

                                                                        R. Timothy Peters

                                                            Circuit Judge, Appellate Division

 

 

 

cc:        Jim Coats, Sheriff of Pinellas County

            Lawrence Kelly, Pro Se