Howarth v. State, 95-260

• Decision Date: 24 February 1995
• Docket Number: No. 95-260,95-260
• Citation: 651 So.2d 206
• Parties: 20 Fla. L. Weekly D480 Michael HOWARTH, a/k/a Mikel Herndon, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 206

651 So.2d 206

20 Fla. L. Weekly D480

Michael HOWARTH, a/k/a Mikel Herndon, Petitioner, v. STATE of Florida, Respondent.

No. 95-260.

District Court of Appeal of Florida, Fifth District.

Feb. 24, 1995.

Petition for Writ of Habeas Corpus, a Case of Original Jurisdiction.

Michael Howarth, a/k/a Mikel Herndon, pro se.

No appearance for respondent.

PER CURIAM.

DENIED.

HARRIS, C.J., and GRIFFIN, J., concur.

W. SHARP, J., concurs specially, with opinion.

W. SHARP, Judge, concurring.

Howarth seeks a writ of habeas corpus from this court to correct his sentence. He claims he was improperly classified as an habitual offender after his probation had been revoked. He also alleges he was denied proper jail credit against his sentence.

In a prior proceeding in this court (Case No. 93-2291), Howarth appealed from the trial court's denial of his rule 3.850 motion, challenging his sentence on the same habitual offender ground he attempts to raise here for a second time. Habeas corpus may not be used to relitigate an issue raised previously on appeal or in a post-conviction motion. See Hardwick v. Dugger, 648 So.2d 100 (Fla.1994). As to the jail credit issue, habeas corpus is not available to correct sentencing errors where an adequate remedy is available under Florida Rule of Criminal Procedure 3.850. See Washington v. Dugger, 579 So.2d 922 (Fla. 3d DCA 1991). His petition should be denied.