McLevy v. State

787 So.2d 194 (2001) Robert McLEVY, Appellant, v. STATE of Florida, Appellee. No. 1D00-4201. District Court of Appeal of Florida, First District. May 15, 2001. Rehearing Denied June 26, 2001. Pro se, for Appellant. Robert A. Butterworth, Attorney General; Janelle C. Gillaspie & Karen M. Holland, Assistant Attorneys General, Tallahassee, for Appellee. BROWNING, J. Robert McLevy (Appellant) was convicted in 1998 of four counts of capital sexual battery and was sentenced in Clay County (the Fourth Judicial Circuit). In 2000, while incarcerated in Jackson County, he filed a petition for writ of habeas corpus in the circuit court for Jackson County (the Fourteenth Judicial Circuit) challenging his conviction and sentence on the ground that he had been convicted under a statute he claimed is unconstitutional. The court in Jackson County denied the petition on the grounds that under the reasoning of Leichtman v. Singletary, 674 So.2d 889 (Fla. 4th DCA 1996), the circuit court for Jackson County has no jurisdiction to review the legality of a Clay County conviction; and a habeas petition may not be used to make a collateral attack upon the conviction. See Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981) ("[T]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850, Fla. R.Crim. P."); see also Frederick v. State, 714 So.2d 1043 (Fla. 4th DCA 1998). We AFFIRM the order denying the petition, without prejudice to Appellant to seek the proper remedy in the appropriate circuit court. ERVIN and MINER, JJ., CONCUR.