Garner v. Wainwright

454 So. 2d 28, 1984 Fla. App. LEXIS 14217

Opinion

PER CURIAM.

Appellant files a petition for writ of habeas corpus which is identical to one previously filed before the Circuit Court for Bradford County. The lower tribunal denied the petition by order of May 16, 1984, without prejudice to the filing of a motion pursuant to Rule 3.850, Fla.R. Crim.P. We find that appellant’s proper procedure was to appeal this order and not to file an identical petition before this Court. However, because the petition was filed within the thirty (30) day period prescribed by the appellate rules for appeals from final orders, see Rule 9.110(b), Fla.R. App.P., we treat the petition for writ of habeas corpus filed herein as a notice of appeal directed to the order entered below denying the identical habeas corpus petition. Because we agree with the lower tribunal that appellant’s proper action under the circumstances outlined in the petition is the filing of a motion pursuant to Rule 3.850, Fla.R.Crim.P., we affirm the order of the lower tribunal, without prejudice to the filing of such a motion.

SMITH, JOANOS and ZEHMER, JJ., concur.