Over 100 Not Guilty Verdicts At Trial | Over 2,000 Dismissals

* Statistics Verified by County Clerk of Court Documents

Read More
Client Testimonials
  • " I would highly recommend this firm if you want diligent, brilliant attorneys working for you. The proof is in his results!" by Anonymous (Google Review), Past Client
  • "He took his time with my case and made sure to get me the best results." by David H., Past Client
  • "Best criminal attorney in Florida" by Elizabeth R., Past Client
  • "I would recommend them to anyone that is in need of the best legal care available!!! " by J. Martinez, Past Client
  • "[Don] is honest, truthful and the person you want in your corner." by J. Williams, Past Client
  • "Without question, the best criminal defense attorney in Tallahassee." by J.P.M., Past Client
  • "Saved my life best lawyer ever!" by Jacob S., Past Client
  • "I highly recommend them for your legal needs." by Jane S., Past Client
  • "You will not find a finer, more experienced criminal attorney in Tallahassee to handle mistakes made by yourself or your student." by Kim, Parent of Past Client
  • "Don can minimize your momentary lapse in judgement!" by Laura B., Past Client
  • "They were there for me every step of the way and I never felt like just another case to them." by Lauren J., Past Client
  • " I would gladly recommend his law firm to represent you or anyone else. They are the real deal." by M.H., Past Client
  • "His passion for justice is second only to his unwavering commitment to his clients." by Michael M., Past Client
  • "If he is involved in your case, you can expect a thorough and compassionate experience with a very good outcome" by Ruth A., Relative of Past Client
  • "One of the finest criminal attorney's in the big bend area" by Terry B., Past Client

Habeas Corpus

Writ of Habeas Corpus

The purpose of the remedy sought in a writ of habeas corpus is to determine the legality of the restraint under which a person has been held. At the state level in Florida, the writ can be filed in the circuit court, the district court of appeals or even the state supreme court. In some cases, the application for a writ of habeas corpus can be filed in federal court. 

The proper grounds for jurisdiction for a writ of habeas corpus are found in Article V, § 3(b)(9) and as restated in Rule 9.030(a)(3) of the Florida Rules of Appellate Procedure. A writ of habeas corpus is often used in criminal cases, although the action is a civil proceeding derived from the common law.

A petition for writ of habeas corpus must state a proper ground for relief and, as with all other original proceedings, it must be prepared and submitted to the appellate court according to the requirements in Rule 9.100 of the Florida Rules of Appellate Procedure. The grounds for the writ of habeas corpus and many of the procedures for submitting the petition and response are found in Rule 9.100.

Attorney for Habeas Corpus in Tallahassee, FL

The attorneys are experienced criminal defense attorneys fighting both felony and misdemeanor cases in courtrooms throughout Tallahassee, FL, and the surrounding areas. The attorneys at Pumphrey Law are also experienced criminal appellate attorneys who represent clients during a motion for a new trial or hearing, direct appeals, post-convictions motions, and writs of habeas corpus.

Contact an attorney focused on criminal appellate practice in Tallahassee, FL, to discuss your case and filing an application for a writ of habeas corpus in either state or federal court. Call (850) 681-7777 today.

Requirements for Filing a Writ of Habeas Corpus in Florida

Under Article V, § 3(b)(9), the Florida Constitution confers a broad power on the Florida Supreme Court to issue writs of habeas corpus. The writ of habeas corpus may be issued by the full court or by any individual justice and it may be returned before any one of the following courts or judges:

  1. the supreme court;
  2. an individual justice of the supreme court;
  3. a district court of appeal;
  4. any judge of a district court of appeal; or
  5. any circuit judge.

The Florida Supreme Court has exercised its jurisdiction to consider a petition for writ of habeas corpus in several cases including Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988) and Cooper v. Dugger, 526 So. 2d 900 (Fla. 1988).

The Writ of Habeas Corpus Addresses the Legality of the Restraint

In Jones v. Florida Parole Comm’n, 48 So. 3d 704 (Fla. 2010), the Florida Supreme Court found that habeas corpus was the proper remedy to determine the validity of a restraint under which a person is held. For this reason, the petitioner must actually demonstrate that he or she is in custody or that the petitioner is being restrained in some manner by the respondent. In other words, habeas corpus is only an appropriate remedy if the petitioner is actually being detained. See Floyd v. Parole and Probation Comm’n, 509 So. 2d 919 (Fla. 1987) and Allen v. Cochran, 128 So. 2d 608 (Fla. 1961).

Where Should the Writ of Habeas Corpus Be Filed?

Should the writ be filed with the Florida Supreme Court, the District Court of Appeals or the Circuit Court? The Florida Supreme Court will not entertain a petition for writ of habeas corpus that has been filed to challenge the propriety of a lower court order denying a prior petition for writ of habeas corpus.

The supreme court’s jurisdiction to issue writs of habeas corpus is concurrent with that of the district courts of appeal and the circuit courts. Concurrent jurisdiction, however, does not give the petitioner three repetitious applications, one to each of these courts in sequence. The courts have prohibited the practice of filing successive petitions for habeas corpus. See State ex rel. Scaldeferri v. Sandstrom, 285 So. 2d 409 (Fla. 1973).

Concurrent jurisdiction does not enable a petitioner to seek habeas corpus relief in the supreme court if the issue is one that should be considered by a lower court. For instance, in Harvard v Singletary, the Florida Supreme Court found that it would no longer exercise its discretion to entertain fact-based extraordinary writ petitions. 733 So. 2d 1020 (Fla. 1999).

The court reasoned that if the petitioner raises a substantial issue of fact or if it does not present an issue that must be resolved by the supreme court, then the supreme court will dismiss the writ or transfer the case to the appropriate district court of appeal or circuit court. In other words, if the issue is one that could be resolved in a lower court, then it is not likely the supreme court will hear a petition for writ of habeas corpus. Likewise, if the writ is filed in the district court, then the district court might transfer the case to the appropriate circuit court.

Although habeas corpus was once used to assert a collateral challenge to a judgment or sentence in a criminal case, that function in noncapital cases has been replaced with the procedures found in Rule 3.850 of the Florida Rules of Criminal Procedure. In other words, the modern postconviction remedies provided in Rule 3.850 mean that habeas corpus is no longer appropriate for this purpose.

Habeas Claims when Counsel on Direct Appeal was Ineffective

In some cases, the petitioner will file a writ of habeas corpus claiming that the counsel on direct appeal was ineffective by failing to raise certain issues on appeal. Claims of ineffective assistance of appellate counsel are properly presented in a petition for a writ of habeas corpus. Wickham v. State, 124 So.3d 841, 863 (Fla. 2013).

“The standard of review for ineffective appellate counsel claims mirrors the Strickland standard for ineffective assistance of trial counsel.” Id. Specifically, to be entitled to habeas relief on the basis of ineffective assistance of appellate counsel, the defendant must establish:

[First, that] the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, [that] the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Bradley v. State, 33 So.3d 664, 684 (Fla. 2010) (quoting Pope v. Wainwright, 496 So.2d 798, 800 (Fla. 1986)).

Habeas Corpus Claims in Federal Court

After a person has convicted and sentenced and after the entire state direct appeal and post-conviction processes are complete, the defendant has one last avenue available to challenge the conviction and sentence. Those motions can include the “Section 2255 motions” or “Section 2241 habeas corpus petitions.” Most federal prisoner collateral attacks are filed under Section 2255 to challenge their conviction and sentence.

A federal habeas corpus proceeding is the last step in the process. For a federal habeas proceeding, the defendant will raise federal constitutional claims in federal court. In this proceeding, the defendant is called the “petitioner” because that is the party filing the petition.

The petition for habeas relief must be filed within a year from the date the post-conviction relief decision was issued. In federal habeas proceedings, the petitioner can only assert federal claims on issues that have already been presented to the state courts during the direct appeal or the post-conviction process. 

For most proceedings for federal habeas corpus, new evidence cannot be introduced, although in some cases, “newly discovered evidence” can sometimes be presented if that evidence was not previously known to the petitioner. For cases involving newly discovered evidence, the federal court might hold an “evidentiary hearing” for the purpose of accepting the new evidence into the record.

After the hearing on the federal habeas corpus issue, the court can deny the petitioner’s request and uphold the conviction and sentence. Alternatively, the court can grant the petition for relief. Relief that can be granted by the court in a federal habeas corpus proceeding can include:

  • Ordering a new trial;
  • Modifying a sentence; or
  • Ordering other relief.

After the decision by the judge in federal court, either side can appeal the decision to a higher court – the Court of Appeals in the appropriate circuit. For any case in federal court in Florida, the case will be appealed to the Eleventh Circut Court of Appeals. For the appeal, the court will consider the briefs presented by each side and hear oral argument.

Thereafter, the court will issue a written opinion. After the ruling by the appellate court in the Eleventh Circuit, either side may ask the United States Supreme Court to review the decision of the Eleventh Circuit Court. The U.S. Supreme Court rarely grants review (less than 1% of the time). 

Additional Resources

  • A Trial Attorney’s Guide to Florida’s Extraordinary Writs
    Visit the Florida Bar Journal to find a scholarly  article written by Valeria Hendricks in April of 2007, and published in Volume 81, No. 4. The article gives trial practitioners a summary of extraordinary writs most courts use to review interlocutory orders and actions.
  • 79.01 Habeas Corpus Application and Writ
    Visit the Florida Legislature Online Sunshine website to find statutes in Title VI related to civil practice and procedures in Florida including Chapter 79 Habeas Corpus applications and writs for any person detained in custody, whether charged with a criminal offense or not who is detained without lawful authority.

Finding a Lawyer to File a Writ of Habeas Corpus in Leon County, FL

If you are being restrained illegally and wish to file a habeas corpus in a case pending in Tallahassee or Leon County, FL, then contact an experienced criminal defense attorney at Pumphrey Law in Tallahassee, FL. Our attorneys fight criminal cases at the trial court level, on direct appeal, and on a post-conviction basis.

Our criminal appellate attorneys in Tallahassee, FL, are also experienced with filing and litigation a writ of Habeas Corpus after an illegal detention in Leon County or the surrounding areas in north Florida.

Call (850) 681-7777 to discuss your case today. Schedule your free legal consultation today.

This article was last updated on Wednesday, March 3, 2021.

Back to Top