GINO LATISI, PETITIONER,
v.
FLORIDA PAROLE AND PROBATION COMMISSION, ETC., RESPONDENTS
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An incarcerated petitioner sought a writ of mandamus to challenge the Florida Parole and Probation Commission's determination of his presumptive parole release date but could not afford the filing fee. The court held that mandamus is a civil action with no statutory waiver of filing fees for indigent petitioners, and thus the petition must be dismissed unless the fee is paid.
A mandamus petition is a civil action, and neither law nor rule provides a waiver of the filing fee for mandamus. Certain constitutional liberty interests are reviewable without cost only through habeas corpus petitions, but complaints concerning presumptive parole release dates do not qualify for such relief. Therefore, the petitioner must pay the filing fee or face dismissal.
[1] A petition for writ of mandamus is a civil action for which no waiver of filing fees is provided by law or rule.
[2] The right of indigents to proceed without payment of costs is governed by substantive law and is not expanded by rules concerning appellate procedure.
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Join FLexlaw to unlock all legal intelligence“A petition for writ of mandamus is a civil action. Neither law nor rule provides a waiver of the filing fee for mandamus.”
Establishes the legal classification of mandamus and the lack of statutory fee waiver authority
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Join FLexlaw to unlock all legal intelligencePetitioner Gino Latisi, who is incarcerated, filed a pro se petition for writ of mandamus challenging the Florida Parole and Probation Commission's de…
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PER CURIAM.
This cause is before the Court as a pro se petition for writ of mandamus. Petitioner requests review of the proceedings of the Florida Parole and Probation Commission in determining petitioner’s presumptive parole release date. Upon receiving and docketing petitioner’s case, this Court directed petitioner to submit to this Court $50 to cover the required filing fee, the failure of which would result in automatic dismissal of his cause without further order of the Court. Petitioner responded claiming that the order denied petitioner access to court because he is presently incarcerated, unable to earn wages and cannot pay the filing fee as ordered. Petitioner moved the Court to permit the case to be filed without payment of the filing fee. We are unable to do this.
As explained in the Committee Notes following Rule 9.430, Florida Rules of Appellate Procedure, that rule does not expand the right of indigents to proceed with an appeal without payment of costs. The existence of such a right is governed by substantive law.
A petition for writ of mandamus is a civil action. Neither law nor rule provides a waiver of the filing fee for mandamus. Certain infringements of liberty interests of a constitutional magnitude are reviewable by this Court without cost to a petitioner under the terms of Article I, Section 13, of the Florida Constitution, when filed as a petition for writ of habeas corpus. See Rule 2.040(b)(3), Florida Rules of Judicial Administration. [Complaints concerning the setting of a presumptive parole release date have not yet been considered to give entitlement to such relief. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).]
Until the Legislature exempts cases such as this one from payment of a filing fee, this Court must abide by § 35.22(3), Fla. Stat., and Rule 9.110(b), Fla.R.App.P. See also Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), reh. denied, 411 U.S. 922, 93 S.Ct. 1551, 36 L.Ed.2d 315 (1973); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).
Accordingly, petitioner’s prayer to proceed without payment of the required filing fee must be denied. Failure to deposit the filing fee by May 6,1980, shall result in the automatic dismissal of this cause without further order of the court.
Cases With Similar Vibessemantic neighbors from the corpus
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Chappell v. Fla. Dep't of Health & Rehabilitative Servs., 391 So. 2d 358 (Fla. 5th DCA 1980)…to pay the appellate fees. This cause is therefore REMANDED. COBB, J., concurs. DAUKSCH, C. J., concurring specially with opinion. . Lee v. City of Winter Haven, 386 So. 2d 268 (Fla. 2d DCA 1980); Latsi v. Florida Parole & Probation Commission, 382 So. 2d 1355 (Fla. 1st DCA 1980); Hillman v. Federal National Mortgage Association, 375 So. 2d 336 (Fla. 4th DCA 1979). . Thayer v. State, 335 So. 2d 815 (Fla.1976). . Capella v. City of Gainesville, 377 So. 2d 658 (Fla.1979). . One of the problems in trying…
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Dylon T. Nichols v. Fla. Parole & Prob. Comm'n, 393 So. 2d 13 (Fla. 1st DCA 1980)…WENTWORTH, Judge. This cause is before us upon petitioner’s pro se motion to be relieved of the filing fee otherwise required by § 35.22(3), Florida Statutes, and Rule 9.110(b), Fla.R.App.P. See Latisi v. Florida Parole and Probation Commission, 382 So. 2d 1355 (Fla. 1st DCA 1980). Petitioner is incarcerated in Florida’s correctional system, and has filed an affidavit indicating that he is indigent and unable to pay the filing fee otherwise required. Subsequent to our decision in Latisi, supra, the Florid…
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Fields v. Zinman, 394 So. 2d 1133 (Fla. 4th DCA 1981)…orded remedial statutes than is the narrow interpretation in Lee. Footnotes omitted. The court reiterated its position, apparently en banc, in a recent case involving a petition for writ of mandamus, Latisi v. FLorida Parole & Probation Commission, 382 So. 2d 1355 (Fla. 2d DCA 1980). The third district has not directly addressed the issue although somewhat related questions have been before that court. Brinker v. Ludlow, 379 So. 2d 999 (Fla. 3d DCA 1980); Bower v. Connecticut General Life Insurance Co., 347…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (U.S. 1979)
- United States v. Kras, 409 U.S. 434 (U.S. 1973)
- Ortwein v. Schwab, 410 U.S. 656 (U.S. 1973)
- Ortwein v. Schwab, 411 U.S. 922 (U.S. 1973)