Netherly v. Dugger

District Court of Appeal of Florida

Netherly v. Dugger

513 So. 2d 259, 12 Fla. L. Weekly 2352, 1987 Fla. App. LEXIS 12226

CourtDistrict Court of Appeal of Florida

DecidedOctober 2, 1987

DocketNo. 86-3316

StatusPublished

Cited by2 cases

This text of 513 So. 2d 259 (Netherly v. Dugger) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Netherly v. Dugger, 513 So. 2d 259, 12 Fla. L. Weekly 2352, 1987 Fla. App. LEXIS 12226 (Fla. Ct. App. 1987).

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Opinion

BOARDMAN, EDWARD F., (Ret.) Judge.

Appellant contends the trial court erred in denying his petition for writ of habeas corpus. In his petition, appellant alleged that the Department of Corrections’ application of section 944.275, Florida Statutes (1983), which resulted in the forfeiture of 2,514 days that he had earned on a 1975 sentence, was an unlawful ex post facto application. The trial court denied appellant’s petition, finding that appellant failed [260]*260to state a cause of action upon which relief could be granted. We affirm.

After reviewing the record we conclude that even if appellant’s allegations are true, he was not entitled to immediate release at the time he filed his petition. On appeal, appellant concedes that his petition was filed prematurely and further concedes that 120 days of gain time he earned while serving a 1979 sentence could have been legally forfeited under section 944.28, Florida Statutes (1983). Because appellant was legally confined at the time he filed his petition for writ of habeas corpus, the trial court was correct in denying the petition for failure to state a cause of action upon which relief could be granted. See Schack v. State, 202 So.2d 824 (Fla. 1st DCA), cert. dismissed, 204 So.2d 212 (Fla.1967), cert. denied, 390 U.S. 967, 88 S.Ct. 1078, 19 L.Ed.2d 1171 (1968).

Accordingly, we affirm the trial court’s denial of appellant’s petition for writ of habeas corpus, without prejudice to appellant raising this point in a timely-filed petition.

CAMPBELL, A.C.J., and FRANK, J., concur.

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BOARDMAN, EDWARD F., (Ret.) Judge.

Appellant contends the trial court erred in denying his petition for writ of habeas corpus. In his petition, appellant alleged that the Department of Corrections’ application of section 944.275, Florida Statutes (1983), which resulted in the forfeiture of 2,514 days that he had earned on a 1975 sentence, was an unlawful ex post facto application. The trial court denied appellant’s petition, finding that appellant failed [260]*260to state a cause of action upon which relief could be granted. We affirm.

After reviewing the record we conclude that even if appellant’s allegations are true, he was not entitled to immediate release at the time he filed his petition. On appeal, appellant concedes that his petition was filed prematurely and further concedes that 120 days of gain time he earned while serving a 1979 sentence could have been legally forfeited under section 944.28, Florida Statutes (1983). Because appellant was legally confined at the time he filed his petition for writ of habeas corpus, the trial court was correct in denying the petition for failure to state a cause of action upon which relief could be granted. See Schack v. State, 202 So.2d 824 (Fla. 1st DCA), cert. dismissed, 204 So.2d 212 (Fla.1967), cert. denied, 390 U.S. 967, 88 S.Ct. 1078, 19 L.Ed.2d 1171 (1968).

Accordingly, we affirm the trial court’s denial of appellant’s petition for writ of habeas corpus, without prejudice to appellant raising this point in a timely-filed petition.

CAMPBELL, A.C.J., and FRANK, J., concur.

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513 So. 2d 259, 12 Fla. L. Weekly 2352, 1987 Fla. App. LEXIS 12226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/netherly-v-dugger-fladistctapp-1987.

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