ALLEN L. PENOYER v. State

Third District Court of Appeal State of Florida

Opinion filed April 21, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-243 Lower Tribunal No. F20-13877 ________________

Allen L. Penoyer, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Charles K. Johnson, Judge.

Allen L. Penoyer, in proper person.

Ashley Moody, Attorney General, for appellee. Before FERNANDEZ, LINDSEY, and GORDO, JJ.

FERNANDEZ, J.

Allen L. Penoyer appeals the trial court’s denial of his petition for a writ of habeas corpus alleging ineffective assistance of trial counsel, misconduct *2 by the appellate court judges who heard his direct appeal, ineffective assistance of appellate counsel, and the lack of jurisdiction of the trial court, all relating to a judgment and sentence in a 1975 indictment and subsequent trial in the Sixth Judicial Circuit of the State of Florida. Appellant is presently incarcerated in the Dade Correctional Institution, located in Miami-Dade County, Florida, and consequently filed his petition in the Eleventh Judicial Circuit. Because Penoyer’s petition constitutes a collateral attack on his judgment and sentence, only the court in which he was convicted and sentenced has jurisdiction to address his claims. See Peoples v. State, 260 So. 3d 365 (Fla. 3d DCA 2018). The trial court’s order recognized that it was without jurisdiction 1, but denied the petition. In the absence of jurisdiction, the correct disposition is dismissal. We thus reverse and remand for the trial court to dismiss the petition.

Reversed and remanded with instructions.

1 The trial court’s order reads, in relevant part, as follows: “Habeas Corpus is beyond this court’s jurisdiction. Motion is denied.”