Powell v. Florida Department of Corr.

Full title: GARY POWELL, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS and FLORIDA…

Court: District Court of Appeal of Florida, First District

Date published: Sep 22, 1999

741 So. 2d 1201 (Fla. Dist. Ct. App. 1999)

Opinion

No. 99-3017.

Opinion filed September 22, 1999.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

Gary Powell, petitioner., pro se.

No appearance for respondents.

PER CURIAM.

Gary Powell unsuccessfully petitioned the circuit court to challenge a forfeiture of gain time by the Florida Department of Corrections. His appeal was untimely and was therefore dismissed without prejudice to his right to seek relief from judgment in the trial court, as he claimed he had not timely received a copy of the circuit court's order when it was issued. Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

Powell's motion for relief from judgment was denied by the circuit court by order of April 28, 1999. He now petitions this court for a writ of habeas corpus and moves for leave to file a petition for writ of habeas corpus, arguing that the circuit court acted contrary to the directive of this court in the earlier appeal when it denied his motion for relief from judgment. However, our earlier opinion did not indicate that Powell was entitled to such relief, only that his remedy, if any, was to so move the trial court. We are also without jurisdiction to review the correctness of the circuit court's action. The order denying motion for relief from judgment was appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) but Powell did not timely invoke this court's jurisdiction. The extraordinary remedy of habeas corpus cannot be invoked where the petitioner had available an adequate legal remedy by appeal but failed to avail himself of that remedy. Nor can we treat this petition and/or motion as invoking the court's appellate jurisdiction because they were filed well after the 30 day period for appealing the circuit court's order had expired. Accordingly, we must deny the petition for habeas corpus and the accompanying motion on grounds that we lack jurisdiction to entertain them.

PETITION FOR WRIT OF HABEAS CORPUS DENIED; MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS DENIED.

BARFIELD, C.J., ERVIN and WOLF, JJ., concur.