ELISHA GILBERT, PETITIONER,
v.
HARRY K. SINGLETARY, RESPONDENT
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Elisha Gilbert, convicted of grand theft auto and sentenced as a habitual felony offender, filed a pro se petition for writ of habeas corpus while simultaneously represented by counsel on direct appeal. The court denied the petition, holding that habeas corpus is a collateral remedy not available as a substitute for direct appeal and that a party cannot simultaneously be represented by counsel and file pro se pleadings in the same case.
The court denied the habeas corpus petition, holding that habeas corpus is a collateral remedy not available as a substitute for direct appeal, that a party may not simultaneously be represented by counsel and file pro se pleadings in the same case, and that collateral challenges must await completion of the direct appeal or be raised through post-conviction motions after appellate review is concluded.
[1] A court will not entertain a pro se collateral challenge, such as a petition for writ of habeas corpus, while a direct appeal of the conviction and sentencing is simultan…
[2] Habeas corpus is a collateral remedy and is not a substitute for a direct appeal or a motion for post-conviction relief.
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Join FLexlaw to unlock all legal intelligence“As long as he is represented by counsel on appeal and as long as his appeal continues to proceed, this court will not simultaneously entertain pro se collateral challenges such as this petition for writ of habeas corpus.”
Establishes the court's holding that pro se habeas petitions cannot be filed while counsel represents the petitioner on direct appeal.
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Join FLexlaw to unlock all legal intelligencePetitioner Elisha Gilbert was convicted in 1993 of grand theft auto and sentenced to ten years in prison as an habitual felony offender. He is represe…
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PER CURIAM.
Petitioner Elisha Gilbert was convicted in 1993 of grand theft auto and sentenced to ten years in prison as an habitual felony offender. He has filed a petition for writ of habeas corpus in this court, which raises twenty grounds for relief, including claims of ineffective assistance of trial counsel, prosecutorial misconduct and trial court error in his conviction and sentencing.
Our records show that petitioner is represented by counsel in a simultaneously pending direct appeal of his conviction and sentencing. A record has been filed in that appeal, with briefing anticipated. Petitioner claims that he filed a waiver of counsel in the circuit court, and that he does not wish to be represented by counsel. He also suggests that he does not wish to prosecute a direct appeal in this court. While this may be true, petitioner’s recourse lies in the direct appeal. As long as he is. represented by counsel on appeal and as long as his appeal continues to proceed, this court will not simultaneously entertain pro se collateral challenges such as this petition for writ of habeas corpus. See Hendrix v. Pingree, 381 So. 2d 334 (Fla. 1st DCA 1980).
Habeas corpus is a collateral remedy, and is no substitute for a direct appeal. Witt v. State, 465 So. 2d 510 (Fla.1985). Neither is it available as a substitute for a motion for post-conviction relief. Garner v. Wainwright, 454 So. 2d 28 (Fla. 1st DCA 1984). Some of petitioner’s claims in this habeas petition appear to be appropriate for direct appeal; some may form the basis of a claim for post-conviction relief after appellate review is concluded. None, however, can be heard at this time while his appeal remains pending.
Furthermore, a party may not be simultaneously represented by counsel and yet file pro se pleadings or petitions in the same case. State v. Tait, 387 So. 2d 338 (Fla.1980); Whitfield .v. State, 517 So. 2d 23 (Fla. 1st DCA 1987), rev. denied, 525 So. 2d 881 (Fla. 1988), citing Hooks v. State, 253 So. 2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972).
For these reasons, we deny the petition for writ of habeas corpus, without prejudice to petitioner’s right to have counsel raise any appropriate arguments made there in the pending direct appeal, or in a motion for post-conviction relief filed after disposition of the appeal. Our ruling today does not address petitioner’s contention that he does not wish to prosecute his appeal, as that is not properly before this court in this habeas proceeding.
STONE, PARIENTE and STEVENSON, JJ., concur.
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Martin v. State, 783 So. 2d 1170 (Fla. 4th DCA 2001)…5, 2001). Petitioner advises the court that the public defender has been appointed to represent him. Generally, that appointment will preclude petitioner from filing his own petitions since he was represented by counsel. See Gilbert v. Singletary, 632 So. 2d 1104 (Fla. 4th DCA 1994). Because this case was brought to this court prior to appointment of counsel, we consider it on its merits. The petition for writ of prohibition is directed to the denial of a motion to recuse the trial judge. The motion is fac…
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Jackson-Young v. State, 183 So. 3d 1264 (Fla. 1st DCA 2016)…PER CURIAM. The petition for writ of habeas corpus is denied. See Gilbert v. Singletary, 632 So. 2d 1104, 1105 (Fla. 4th DCA 1994) (“Habeas corpus is a collateral remedy, and is no substitute for a direct appeal.”). If petitioner wishes to raise any argument in her direct appeal in case number 1D15-2095, she must file a pro se brief in that case. By or…
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Black v. State, 879 So. 2d 64 (Fla. 1st DCA 2004)…PER CURIAM. DENIED. See Gilbert v. Singletary, 632 So. 2d 1104 (Fla. 4th DCA 1994). WOLF, C.J., DAVIS and HAWKES, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Tait, 387 So. 2d 338 (Fla. 1980)
- Witt v. State, 465 So. 2d 510 (Fla. 1985)
- Hooks v. State, 253 So. 2d 424 (Fla. 1971)
- Marcelin v. New York, 405 U.S. 1044 (U.S. 1972)
- Fentress v. Illinois, 405 U.S. 1044 (U.S. 1972)
- Whitfield v. State, 517 So. 2d 23 (Fla. 1st DCA 1987)
- Hendrix v. Pingree, 381 So. 2d 334 (Fla. 1st DCA 1980)
- Garner v. Louie L. Wainwright, 454 So. 2d 28 (Fla. 1st DCA 1984)