NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GARY LEROY LUCAS, )
)
Appellant, )
)
v. ) Case No. 2D17-274
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed November 1, 2017.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County; Lisa D. Campbell,
Judge.
Gary Lucas, pro se.
PER CURIAM.
Gary Lucas appeals the dismissal of a filing he made in the circuit court
that was styled "Lawsuit for False Imprisonment." The circuit court treated this filing as
a motion for postconviction relief in his criminal case, found that Mr. Lucas's proper
remedy was to pursue appeals of a previously denied motion under Florida Rule of
Criminal Procedure 3.800(a) and a previously denied petition for a writ of habeas
corpus, and dismissed it. It is, however, plain that Mr. Lucas intended this filing to be a
civil complaint: he titled it a "lawsuit," named defendants, chose a cause of action,
demanded money damages, and used a civil cover sheet. Although we have significant
skepticism about the merits of Mr. Lucas's civil suit, it was error to dismiss it on
procedural grounds solely applicable to a postconviction motion in a criminal case. See
Malave v. Malave, 178 So. 3d 51, 55 (Fla. 5th DCA 2015) ("[T]he filing of an action in
the wrong division should be remedied by reassignment to the correct division as
opposed to a dismissal of the action."). We therefore reverse that decision and remand
with instructions to vacate the order of dismissal and transfer or otherwise ensure
assignment of the case to the appropriate civil division of the circuit court.
Reversed and remanded with instructions.
CRENSHAW, BLACK, and SALARIO, JJ., Concur.
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