Cedric R. Hutchinson v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-4787 _____________________________

CEDRIC R. HUTCHINSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Calhoun County. Shonna Young Gay, Judge.

August 7, 2018

BILBREY, J.

Cedric R. Hutchinson challenges the dismissal of his petition for a writ of habeas corpus. By this petition, Hutchinson challenged his conviction for aggravated battery, a conviction obtained in Hillsborough County. The circuit court in Calhoun County dismissed the petition as “unauthorized.” While the premise of Hutchinson’s petition was incorrect – that a motor vehicle cannot be a deadly weapon under the aggravated battery statute * – the circuit court should have transferred the petition to Hillsborough County in the Thirteenth Circuit for its

*See Clark v. State, 783 So. 2d 967 (Fla. 2001); V.A. v. State, 819 So. 2d 847 (Fla. 3d DCA 2002).

consideration of the petition. See Torres v. State, 208 So. 3d 831 (Fla. 1st DCA 2017); Baker v. State, 164 So. 3d 38 (Fla. 3d DCA 2015).

In Torres and Baker, the petitioner challenged the sufficiency of the charging document. These cases are therefore distinguishable from the case on which the trial court relied, Gill v. Jones, 204 So. 3d 459 (Fla. 4th DCA 2016), which held that a habeas petition was unauthorized and hence subject to dismissal because the petitioner pursued post-conviction relief in the wrong court). See also James v. Jones, -- So. 3d --, 45 Fla. L. Weekly D815 (Fla. 1st DCA 2018) (holding dismissal of habeas petition appropriate when petitioner is seeking post-conviction relief available under rule 3.850, Florida Rules of Criminal Procedure).

Accordingly, the order of dismissal is vacated, and the cause is remanded to the circuit court with the instruction that the petition be transferred to the circuit court for Hillsborough County.

B.L. THOMAS, C.J., and OSTERHAUS, J., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Cedric R. Hutchinson, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Frank X. Moehrle, Jr. and Amanda Stokes, Assistant Attorneys General, Tallahassee, for Appellee.