       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 31, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-1110
                         Lower Tribunal No. 13-1330-K
                             ________________


                           Jerry Thomas Baker,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Monroe County, Wayne M. Miller,
Judge.

     Jerry Thomas Baker, in proper person.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for appellee.


Before SUAREZ, LAGOA and SCALES, JJ.

     SCALES, J.
      Jerry Thomas Baker (Baker), appeals from an order of the Monroe County

Circuit Court that transferred his petition for writ of habeas corpus to the Leon

County Circuit Court. We vacate the order transferring venue and remand with

instructions that the Monroe County Circuit Court dismiss Baker’s petition.

      In 1995, Baker was charged in Monroe County with, inter alia, armed

robbery. After a jury trial, in 1996, Baker was found guilty and sentenced to life in

prison. At all times pertinent to this appeal, Baker has been incarcerated at the

Apalachee Correctional Institution East located in Jackson County.

      Since his conviction, Baker has filed a direct appeal of his conviction and a

multitude of post-conviction motions and habeas petitions—all of which were

affirmed, denied, or dismissed without published opinion.1

      On December 11, 2013—more than fifteen years after a mandate was issued

upon Baker’s unsuccessful direct appeal—Baker filed a petition for writ of habeas

corpus in the Monroe County Circuit Court challenging the charging document

associated with his 1996 conviction. There is no allegation of newly discovered

evidence in the petition.
1 See Baker v. State, 705 So. 2d 14 (Fla. 3d DCA 1998) (Table); Baker v.
Singletary, 728 So. 2d 228 (Fla. 3d DCA 1999) (Table); Baker v. Singletary, 729
So. 2d 389 (Fla. 1999) (Table); Baker v. State, 766 So. 2d 1053 (Fla. 3d DCA
2000) (Table); Baker v. State, 812 So. 2d 418 (Fla. 3d DCA 2002) (Table); Baker
v. State, 814 So. 2d 1049 (Fla. 3d DCA 2002) (Table); Baker v. State, 816 So. 2d
627 (Fla. 3d DCA 2002) (Table); Baker v. State, 845 So. 2d 201 (Fla. 3d DCA
2003) (Table); Baker v. State, 896 So. 2d 762 (Fla. 3d DCA 2005) (Table); Baker
v. State, 95 So. 3d 234 (Fla. 3d DCA 2012) (Table).


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      Without ruling on the merits of Baker’s petition, on January 24, 2014, the

Monroe County Circuit Court transferred Baker’s petition to the Second Judicial

Circuit in Leon County.2

      The Leon County Circuit Court reviewed Baker’s petition, determined that

Baker was actually attempting to collaterally attack the underlying conviction, and,

on February 11, 2014, dismissed Baker’s petition. In its order of dismissal, the

Leon County Circuit Court determined that it lacked jurisdiction to adjudicate

Baker’s claims seeking post-conviction relief.

      Baker then filed the instant appeal seeking review of the Monroe County

Circuit Court’s January 24, 2014 order transferring venue.

      In his appeal, Baker seems to concede that his petition seeks post-conviction,

rather than habeas corpus, relief. Baker argues: (1) the Monroe County Circuit

Court has jurisdiction over his habeas petition; and (2) the Monroe County Circuit

Court should have construed his habeas petition as a motion for post-conviction

relief and adjudicated same.



2 The cases cited in support of the order transferring venue are distinguishable from
the instant case. In those cases, prisoners sought mandamus relief against the
Department of Corrections (DOC), and the courts determined that the proper venue
was Leon County, where the DOC has its headquarters. See Stovall v. Cooper, 860
So. 2d 5 (Fla. 2d DCA 2003); Barber v. State, 661 So. 2d 355 (Fla. 3d DCA 1995).
Both parties in the instant case believe Baker’s petition was transferred under the
Monroe County Circuit Court’s mistaken belief that Baker was incarcerated in
Leon County.

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      Baker’s first argument is correct. The Monroe County Circuit Court, the

court of conviction, has jurisdiction over Baker’s habeas petition because the

petition challenges the sufficiency of the charging document which amounts to a

collateral attack on Baker’s 1996 conviction. See Richardson v. State, 918 So. 2d

999, 1001 (Fla. 5th DCA 2006) (“[T]he general rule [is] that a petition for writ of

habeas corpus should be filed in the circuit court where the defendant is detained . .

. . But there is an exception . . . ‘[w]hen a petitioner attacks the validity of the

conviction . . . jurisdiction in habeas proceedings lies with the trial court that

imposed the sentence and rendered the judgment of conviction.’”) (citation

omitted).

      Baker’s second argument, however, is incorrect. The Monroe County Circuit

Court did not err by failing to construe the habeas petition as a motion for post-

conviction relief. The grounds raised by Baker are inappropriate for a habeas

petition because they could have and should have been raised on direct appeal. See

Price v. State, 937 So. 2d 702, 702-03 (Fla. 5th DCA 2006); Moore v. State, 817

So. 2d 1072 (Fla. 5th DCA 2002). Additionally, if these grounds were asserted

pursuant to Florida Rule of Criminal Procedure 3.850, they are time-barred. See

Fla. R. Crim. P. 3.850(b).

      Generally, “[i]f 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



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responsibility of the court to seek the proper remedy.” See Fla. R. App. P. 9.040(c)

(applicable to the circuit court in this case, Fla. R. App. P. 9.010 & 9.030(c)(3));

Zuluaga v. State, Dep’t. of Corrs., 32 So. 3d 674, 677 (Fla. 1st DCA 2010).

      In certain instances, however, dismissal rather than treatment as a Florida

Rule of Criminal Procedure 3.850 motion, is the appropriate remedy when a

habeas petition challenges the judgment and sentence. See Baker v. State, 878 So.

2d 1236, 1245-46 (Fla. 2004) (“Accordingly, from now on, we will dismiss as

unauthorized, habeas corpus petitions filed by noncapital defendants that seek the

kind of collateral postconviction relief available through a motion filed in the

sentencing court, and which (1) would be untimely if considered as a motion for

postconviction relief under rule 3.850, (2) raise claims that could have been raised

at trial or, if properly preserved, on direct appeal of the judgment and sentence, or

(3) would be considered a second or successive motion under rule 3.850 that either

fails to allege new or different grounds for relief, or alleges new or different

grounds for relief that were known or should have been known at the time the first

motion was filed.”); Richardson, 918 So. 2d at 1004 (“[W]e emphasize that when a

habeas petition is filed raising inappropriate issues that fall within one of the three

categories enumerated in Baker, the appropriate disposition is dismissal. Treating

the petition as a rule 3.850 motion and deciding the issues on the merits based on




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attendant hearings before the trial court is indeed a waste of valuable judicial

resources.”).

      Accordingly, we vacate the trial court’s January 24, 2014 order transferring

venue, and remand with instructions that the Monroe County Circuit Court dismiss

Baker’s petition.

      Remanded with instructions.




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