GILES E. ORCUTT

v.

STATE OF FLORIDA

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Donald G. Jacobsen, Judge. Giles E. Orcutt, pro se. PER CURIAM. Giles E. Orcutt appeals the denial of his petition for writ of mandamus. We reverse. In 1977, Mr. Orcutt pleaded guilty to one count of second-degree murder, a first-degree felony punishable by life, and the trial court sentenced him to life in prison. In 2018, Mr. Orcutt filed his petition for writ of mandamus in our court, and we

- 2 - transferred the petition to the Tenth Judicial Circuit in and for Polk County.

The circuit court denied the petition. In his petition, Mr. Orcutt alleged that the Florida Commission on Offender Review (FCOR) determined that he is ineligible for a parole release date under the Mutual Participation Program (the Program) because he is serving a "life felony sentence." See § 947.135(2), Fla. Stat. (2017) ("[N]o offender shall be eligible to participate in this program who was . . . convicted of a capital or life felony.").

He sought an order from the circuit court vacating his "life felony sentence," imposing a term of years sentence for a first-degree felony, and directing FCOR to hold a hearing to establish his eligibility for a parole release date. Mr. Orcutt argued that a writ of mandamus was required to remedy his situation. See Williams v. Fla. Parole Comm'n, 625 So. 2d 926, 934 (Fla. 1st DCA 1993) (stating that mandamus is available to "order the [Florida Parole Commission] to reconsider its decision and the petitioner's eligibility for parole" (citing Moore v. Fla. Parole & Prob. Comm'n, 289 So. 2d 719, 720 (Fla. 1974))), receded from on other grounds by Sheley v. Fla. Parole Comm'n, 703 So. 2d 1202, 1206 (Fla. 1st DCA 1997).1 In denying the petition, the postconviction court treated it as if it were filed as a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a).

The court found that Mr. Orcutt's claim was successive because Mr. Orcutt previously filed numerous motions regarding his parole eligibility and his alleged illegal sentence, all of which had been denied and affirmed on appeal. 1The Florida Parole Commission was renamed the Florida Commission on Offender Review in 2014.

- 3 - Generally, a petition for writ of certiorari is the appropriate way to review the denial of a petition for writ of mandamus when the circuit court is acting in its appellate capacity. See Welsch v. State, 823 So. 2d 310, 311 (Fla. 2d DCA 2002) (converting appeal from circuit court’s denial of petition for writ of mandamus to a petition for writ of certiorari) (citing Sheley v. Fla. Parole Comm’n, 720 So. 2d 216 (Fla. 1998)).

However, our appellate jurisdiction is invoked when mandamus relief has been denied for reasons other than the merits. See Battle v. Fla. Comm'n on Offender Review, 188 So. 3d 10, 12 (Fla. 1st DCA 2016).

We treat this case as a direct appeal because the court below did not address the merits of the petition. We need not reach the merits of the appeal, however, because Polk County was not the proper venue to consider Mr. Orcutt's petition. Mr. Orcutt's petition should have been transferred to Leon County for consideration because FCOR is located in Leon County. See Spradley v. Parole Comm'n, 198 So. 3d 642, 646–48 (Fla. 2d DCA 2015) (stating that venue is generally proper in the county where the state agency’s principal headquarters are located and transferring mandamus petition to Leon County).

Accordingly, we reverse and remand for the postconviction court to transfer the petition to Leon County. Reversed with instructions. KELLY, VILLANTI, and ATKINSON, JJ., Concur.