Opinion
No. 3D19-760
07-10-2019
Castro Guerra, Appellant, v. The State of Florida, Appellee.
Castro Guerra, in proper person. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 03-1097 An appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Milton Hirsch, Judge. Castro Guerra, in proper person. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee. Before SALTER, MILLER, and GORDO, JJ. MILLER, J.
Appellant, Castro Guerra, a prisoner housed in Hardee County, Florida, challenges the lower court's order denying his motion to correct illegal sentence. In his motion, Guerra contended that he was eligible for immediate release as the Florida Department of Corrections improperly calculated his gain time.
Because Guerra asserted an entitlement to immediate release, the proper vehicle for raising the claim is through a petition for writ of habeas corpus filed in the county in which he is currently incarcerated. See Bush v. State, 945 So. 2d 1207, 1210 (Fla. 2006) ("When challenging a sentence-reducing credit determination by the Department [of Corrections], such as a gain time or provisional release credit determination . . . if the prisoner alleges entitlement to immediate release, a petition for writ of habeas corpus is the proper remedy."). Therefore, as Guerra is not housed in Miami-Dade County, the Circuit Court of Miami-Dade County "lacked territorial jurisdiction over" this action. Genovese v. Tucker, 103 So. 3d 255 (Fla. 1st DCA 2012).
Accordingly, we reverse the order below, and remand with instructions to treat the action as a petition for writ of habeas corpus and immediately transfer the action to the circuit court that has jurisdiction over the correctional facility in which Guerra is currently being held. Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.").
Reversed and remanded.