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1 .,. RECEIVED BLACKWATER RIVER CF JUL , L2J7," 1)11 01srR1crcouRroFAPPEAL IN THE DisTrucT court of APPEAL of FLq~n~~~.' ~= AFTH DISTRICT Ftp TH DISTRICT INITIAL ~ V. Case No.: 7016-:5T7tP STATE OF FLORIDA, Plaintiff/Respondent. ~~~~~~~~~~/ l;2 5 u J.Il ::E ~ ~ rn 'l>t.- ~ >- 5 al NOTICE TO INVOKE DISCRETIONARY JURISDICTION u NOTICE IS GIVEN that f11 4 "k. &tw.to.fi. LJ,, 0 5e, Defendant/Petitioner, invokes the discretionary jurisdiction of the Supreme Court to review the decision ;>; of this court rendered tf tj 1VE -;.6 '20 /7' iritb-itfcttf.t- ()..t/'ec-f_, a-. ec/p...f.j 111f fb.-fr. r;l/:i:,er?,~ <?--?CP«kci 61%..tLf'?l!Me 9,0~0 ~) {!J) (jj/)~2. Respectfully submitted, Isl f1'vll46.k /Jtc..ck tit? w 0-rf h Defendant/Petitioner, pro se BRCF Law Library

2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been placed into the hands of prison officials at Blackwater River Correctional Facility for pre-paid First Class U.S. mail to the Office of the Attorney General, Office of Legal Affairs, The Capitol, PL-01, Tallahassee, FL and the Clerk of the Supreme Court, Supreme Court Building, 500 South Duval Street, Tallahassee on this.2:;1_ day of---""j'--..,1--4ft~{'-----' Defendant/Petitioner, pro se DC# X76r7-U Blackwater River Corr. Facility 5914 Jeff Ates Road Milton, Florida BRCF Law Library

3 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT / NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED MARK HOWARTH, Appellant, v. Case No DEPARTMENT OF CORRECTIONS AND STATE OF FLORI DA, Appellees. Opinion filed April 28, 2017 Appeal from the Circuit Court for Orange County, Janet C. Thorpe, Judge. Mark Howarth, Milton, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGulgan, Assistant Attorney General, Daytona Beach, for Appellee, State of Florida. No appearance for other appellee. PERCURIAM. Mark Howarth (the defendant) seeks review of the trial court's order dismissing his petition seeking a writ of habeas corpus. We affirm. The defendant filed a petition seeking a writ of habeas corpus, arguing that the information filed against him suffered from incurable defects inasmuch as it charged

4 - ' lengthy timeframes with respect to the commission of each offense, making it impossible for him to formulate a defense. The trial court dismissed the petition, concluding that the defendant failed to serve his petition on the State within 120 days of filing, as mandated by Florida Rule of Civil Procedure However, the defendant's petition was properly filed pursuant to the provisions of section 79.01of the Florida Statutes (2015), and rule of the Florida Rules of Civil Procedure (2015). Specifically, rule provides that a petitioner is not required to serve the respondent with the petition, but rather, upon determining that a habeas corpus petition demonstrates a prim a facie case for relief, the trial court issues the writ of habeas corpus. See Fla. R. Civ. P (d); Bard v. Walson, 687 So. 2d 254 (Fla: 1st DCA 1996) ("Florida Rule of Civil Procedure and Chapter 79, Florida Statutes, specify the procedure to be followed in habeas corpus proceedings before the trial court."). In Moore v. Ake, 693 So. 2d 697 (Fla. 2d DCA 1997), the Second District reversed the trial court's order dismissing the appellant's petition for a writ of mandamus based on the failure to serve the respondents within 120 days. Writing for the court, Judge Altenbernd explained: The trial court dismissed Kevin Moore's petition for writ of mandamus because he failed to serve the respondents within 120 days. We reverse because the trial court had an obligation under Florida Rule of Civil Procedure to review Mr. Moore's complaint when it was filed, decide whether it established a prima facie case, and issue an alternative writ of mandamus if the petition was facially adequate. Staton v. McMillan. 597 So. 2d 940 (Fla. 1st DCA 1992). The petitioner was not required to serve the respondent with the complaint and could not serve the alternative writ until the trial court had performed the tasks required of it under the rule. 2

5 l!h at Thus,: the trial court erred in dismissing the defendant's habeas corpus petition due _to his purported failure to ensure that process was served upon the State within 120 days. However, such error was harmless because the defendant's petition was properly dismissed, albeit for a different reason: the defendant previously raised his challenge to the purportedly defective nature of the information in both his direct appeal and his rule proceeding arid,-thus, he -is improper:ly-tr-ying ~to use tbe_vehicle of.habeas corpus "to seek a second appeal or to litigate issues that... were raised in a motion under rule " Baker v. State, 878 So. 2d 1236, 1241 (Fla. 2004). See Fla. R. Crim. P Accordingly, we affirm the instant dismissal order because the trial court reached the correct result, but for the wrong reason. See Sullivan v. State, 913 So. 2d 762, 763 (Fla. 2005) ("Even though the lower court erred in its finding of exceptional circumstances, we conclude that we should affirm under the 'tipsy coachman' rule because the trial court.reached the right conclusion."). AFFIRMED. SAWAYA, PALMER and TORPY, JJ., concur. 3

6 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT MARK HOWARTH, Appellant, v. CASE NO. 5D DEPARTMENT OF CORRECTIONS AND STATE OF FLORIDA, Appellees. DATE: June 26, 2017 BY ORDER OF THE COURT: ORDERED that Appellant's Motion for Rehearing, filed June 7, 2017, is denied. I hereby certify that the foregoing is (a true copy of) the original Court order. Panel: Judges Sawaya, Palmer, and Tarpy cc: Office of Attorney General Rebecca Rock McGuigan Mark Howarth Corrections Department

7 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED MARK HOWARTH, Appellant, v. Case No. 5D DEPARTMENT OF CORRECTIONS AND STATE OF FLORIDA, Appellees. Opinion filed April 28, 2017 Appeal from the Circuit Court for Orange County, Janet C. Thorpe, Judge. Mark Howarth, Milton, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee, State of Florida. No appearance for other appellee. PER CURIAM. Mark Howarth (the defendant) seeks review of the trial court's order dismissing his petition seeking a writ of habeas corpus. We affirm. The defendant filed a petition seeking a writ of habeas corpus, arguing that the information filed against him suffered from incurable defects inasmuch as it charged

8 lengthy timeframes with respect to the commission of each offense, making it impossible for him to formulate a defense. The trial court dismissed the petition, concluding that the defendant failed to serve his petition on the State within 120 days of filing, as mandated by Florida Rule of Civil Procedure However, the defendant's petition was properly filed pursuant to the provisions of section of the Florida Statutes (2015), and rule of the Florida Rules of Civil Procedure (2015). Specifically, rule provides that a petitioner is not required to serve the respondent with the petition, but rather, upon determining that a habeas corpus petition demonstrates a prima facie case for relief, the trial court issues the writ of habeas corpus. See Fla. R. Civ. P (d); Bard v. Welson, 687 So. 2d 254 (Fla. 1st DCA 1996) ("Florida Rule of Civil Procedure and Chapter 79, Florida Statutes, specify the procedure to be followed in habeas corpus proceedings before the trial court."). In Moore v. Ake, 693 So. 2d 697 (Fla. 2d DCA 1997), the Second District reversed the trial court's order dismissing the appellant's petition for a writ of mandamus based on the failure to serve the respondents within 120 days. Writing for the court, Judge Altenbernd explained: The trial court dismissed Kevin Moore's petition for writ of mandamus because he failed to serve the respondents within 120 days. We reverse because the trial court had an obligation under Florida Rule of Civil Procedure to review Mr. Moore's complaint when it was filed, decide whether it established a prima facie case, and issue an alternative writ of mandamus if the petition was facially adequate. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992). The petitioner was not required to serve the respondent with the complaint and could not serve the alternative writ until the trial court had performed the tasks required of it under the rule. 2

9 ~at Thus, the trial court erred in dismissing the defendant's habeas corpus petition due to his purported failure to ensure that process was served upon the State within 120 days. However, such error was harmless because the defendant's petition was properly dismissed, albeit for a different reason: the defendant previously raised his challenge to the purportedly defective nature of the information in both his direct appeal and his rule proceeding and, thus, he is improperly trying to use the vehicle of habeas corpus "to seek a second appeal or to litigate issues that... were raised in a motion under rule " Baker v. State, 878 So. 2d 1236, 1241 (Fla. 2004). See Fla. R. Crim. P Accordingly, we affirm the instant dismissal order because the trial court reached the correct result, but for the wrong reason. See Sullivan v. State, 913 So. 2d 762, 763 (Fla. 2005) ("Even though the lower court erred in its finding of exceptional circumstances, we conclude that we should affirm under the 'tipsy coachman' rule because the trial court reached the right conclusion."). AFFIRMED. SAWAYA, PALMER and TORPY, JJ., concur. 3

10 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT MARK HOWARTH, Appellant, v. CASE NO. 5D DEPARTMENT OF CORRECTIONS AND STATE OF FLORIDA, Appellees I DATE: June 26, 2017 BY ORDER OF THE COURT: denied. ORDERED that Appellant's Motion for Rehearing, filed June 7, 2017, is I hereby certify that the foregoing is (a true copy of) the original Court order. ~~~ JOANNE P SIMMONS. CLERK Panel: Judges Sawaya, Palmer, and Torpy cc: Office of Attorney General Rebecca Rock McGuigan Mark Howarth Corrections Department

11 5DCA CERTIFICATION I hereby certify that the foregoing is a true and correct copy of the instrument(s) filed in this office. Witness my hand and official seal this July 28, Joanne P. Simmons, Clerk of the Fifth District Court of Appeal. By: /s/ Kathy Palmere

12 JAY P. COHEN CHIEF JUDGE THOMAS D. SAWAYA WILLIAM D. PALMER RICHARD B. ORFINGER VINCENT G. TORPY, JR KERRY I. EVANDER WENDY W. BERGER F. RAND WALLIS BRIAN D. LAMBERT JAMES A. EDWARDS ERIC J. EISNAUGLE JUDGES DISTRICT COURT OF APPEAL FIFTH DISTRICT 300 SOUTH BEACH STREET DAYTONA BEACH, FLORIDA (386) COURT (386) CLERK JOANNE P. SIMMONS CLERK CHARLES R. CRAWFORD MARSHAL July 28, 2017 Hon. John A. Tomasino, Clerk Supreme Court of Florida 500 South Duval Street Tallahassee, Florida Re: Howarth v. Dept of Corrections Appeal No. 5D Trial Court No: 2015-CA O Trial Court Judge: Janet C. Thorpe Dear Hon. Tomasino: Attached is a certified copy of the Notice invoking the discretionary jurisdiction of the Supreme Court pursuant to Rule 9.120, Florida Rules of Appellate Procedure, along with a copy of this Court's opinion or decision relevant to this case. The filing fee prescribed by Section (3), Florida Statutes, was received by this court and will be forwarded. The filing fee prescribed by Section (3), Florida Statutes, was not received by this Court. Petitioner/Appellant has been previously determined insolvent by this Circuit Court or our court. No filing fee is required because: Summary Appeal (Rule 9.141) Unemployment Appeals Commission Habeas Corpus Juvenile case Other Sincerely, JOANNE P. SIMMONS, CLERK By: /s/ Kathy Palmere Deputy Clerk Attachments cc: Office of Attorney General Mark Howarth FAX NUMBER (386) E MAIL ADDRESS

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