Russell v. State

District Court of Appeal of Florida

Russell v. State

28 So. 3d 226, 2010 Fla. App. LEXIS 2229, 2010 WL 668781

CourtDistrict Court of Appeal of Florida

DecidedFebruary 26, 2010

Docket2D09-4380

StatusPublished

Cited by1 cases

This text of 28 So. 3d 226 (Russell v. State) 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.

Bluebook

Russell v. State, 28 So. 3d 226, 2010 Fla. App. LEXIS 2229, 2010 WL 668781 (Fla. Ct. App. 2010).

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Opinion

*227 ALTENBERND, Judge.

Shedrick Antwan Russell appeals an order denying his petition for writ of habeas corpus that was filed with the circuit court in the circuit where he was convicted. “After careful review,” the trial court denied the motion without any explanation or attachment. We reverse.

Mr. Russell is serving a life sentence for robbery. His direct appeal was affirmed in June 2009. Russell v. State, 11 So.3d 364 (Fla. 2d DCA 2009) (table decision). It is obvious that this petition for writ of habeas corpus is his first postconviction proceeding challenging the robbery conviction. He claims, in part, that a witness recanted her testimony shortly after the trial.

The trial court should not have denied this motion on its merits. It should have treated the filing as a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. See Valdez-Garcia v. State, 965 So.2d 318, 322 (Fla. 2d DCA 2007). As such, it may have been facially insufficient and subject to an order of dismissal without prejudice — preferably with leave to amend so as to avoid an appeal from an order that did not reach the merits. See Spera v. State, 971 So.2d 754, 755 (Fla.2007). In any event, it should not have been denied in this manner.

Reversed and remanded.

DAVIS and WALLACE, JJ„ Concur.

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*227 ALTENBERND, Judge.

Shedrick Antwan Russell appeals an order denying his petition for writ of habeas corpus that was filed with the circuit court in the circuit where he was convicted. “After careful review,” the trial court denied the motion without any explanation or attachment. We reverse.

Mr. Russell is serving a life sentence for robbery. His direct appeal was affirmed in June 2009. Russell v. State, 11 So.3d 364 (Fla. 2d DCA 2009) (table decision). It is obvious that this petition for writ of habeas corpus is his first postconviction proceeding challenging the robbery conviction. He claims, in part, that a witness recanted her testimony shortly after the trial.

The trial court should not have denied this motion on its merits. It should have treated the filing as a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. See Valdez-Garcia v. State, 965 So.2d 318, 322 (Fla. 2d DCA 2007). As such, it may have been facially insufficient and subject to an order of dismissal without prejudice — preferably with leave to amend so as to avoid an appeal from an order that did not reach the merits. See Spera v. State, 971 So.2d 754, 755 (Fla.2007). In any event, it should not have been denied in this manner.

Reversed and remanded.

DAVIS and WALLACE, JJ„ Concur.

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28 So. 3d 226, 2010 Fla. App. LEXIS 2229, 2010 WL 668781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-state-fladistctapp-2010.

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