21-b-3 How to File a Habeas Petition

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

21-B-3. How to File a Habeas Petition

(a) When to File

First, make sure you are not eligible to bring a Rule 3.850 motion. Florida courts will refuse to issue a writ of habeas corpus if you can pursue your claim through another available action, like a Rule 3.850 motion, but fail to do so.⁸⁶

If you are facing the death penalty, your petition for a writ of habeas corpus must be filed at the same time as the initial brief filed on your behalf in the appeal of the circuit court's order on a motion to vacate, set aside, or correct a sentence.⁸⁷

(b) Where to File

Where you file depends upon the stage of your criminal case. If you have not yet been convicted, or are filing a petition related to a probation violation, you must petition the circuit court judge presiding over your case.⁸⁸ But, if the Supreme Court has affirmed your conviction, you must file your petition with the Supreme Court.⁸⁹ If you originally file with the circuit court, and the circuit court denies your petition, then you may file another petition with the Supreme Court.⁹⁰ In general, you should file the petition in the jurisdiction in which you are incarcerated, but if you are raising an issue that should have been raised on direct appeal (like ineffective counsel), you should file in the court where the original sentence was imposed.⁹¹

(c) What to Include in Your Petition

Because the writ of habeas corpus is such a unique right, the courts in Florida may occasionally grant applications for writs that do not follow statutory requirements. For example, an attorney may make a telephone call to a judge to apply for a writ,⁹² or a judge may decide that the informal letters from a prisoner provide sufficient grounds for issuing the writ.⁹³ However, it is always better to comply with statutory requirements if you can, basing your argument on enough detailed, factual allegations to make a case that on its face shows you are entitled to be released.⁹⁴ The statutory requirements for your application for a writ include:

(1) The facts you are relying on for relief,

(2) A request for a writ of habeas corpus, and

(3) An optional argument in support of the petition with citations of authority.⁹⁵

While you do not need to present all the evidence of your wrongful detention,⁹⁶ you should attach to your petition...