ALLEN BREGMAN
v.
THE STATE OF FLORIDA, ET AL.
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Allen Bregman petitioned for a writ of mandamus to compel a circuit court judge to rule on his postconviction motion under Florida Rule of Criminal Procedure 3.850. The court dismissed the petition without prejudice because Bregman had not actually provided the trial court with a copy of the postconviction motion, despite the trial court's offer to docket and address it.
The petition for writ of mandamus is dismissed without prejudice because Bregman failed to provide the trial court with a copy of the postconviction motion, even after the trial court offered to docket and address it.
[1] A petition for writ of mandamus will be dismissed without prejudice when the petitioner has not provided the trial court with a copy of the postconviction motion at issue…
[2] A trial court may offer a petitioner the opportunity to resubmit a postconviction motion that was not received or docketed by the clerk.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because Bregman has not yet provided the trial court with a copy of the subject postconviction motion, we dismiss the petition for writ of mandamus without prejudice to allow Bregman to file a copy of the postconviction motion with the trial court.”
The court's holding that dismissal without prejudice is appropriate because the underlying motion was never properly submitted to the trial court.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBregman claimed he delivered his rule 3.850 postconviction motion to correctional officials on February 26, 2024 for filing with the circuit court. Th…
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GORDO, J.
Allen Bregman (“Bregman”) petitions for a writ of mandamus to compel the appointment of a circuit court judge to rule on his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We dismiss the petition.
Upon review of the amended petition for writ of mandamus,1 Bregman asserts he placed his rule 3.850 motion into the hands of correctional officials for filing with the circuit court on February 26, 2024. Although Bregman argues the motion was provided to correctional officials on that date, it is unclear why the lower court docket does not show that any such motion was filed.
In response to Bregman’s inquiry with the trial court as to the status of his rule 3.850 motion, the trial court advised Bregman that his motion is moot because his case has had an assigned judge since January 2021, the lower court had no record of the February 2024 motion and Bregman had not filed any motion with the lower court clerk in connection with his case since July 2020. The trial court stated it understood Bregman mailed his rule 3.850
motion to the Clerk of the Eleventh Judicial Circuit and acknowledged that, for reasons unknown, the motion was not received or docketed. The trial court thus gave Bregman the opportunity to send a copy of the motion to the court and it would ensure the motion was docketed and addressed. Bregman did not do so.
Because Bregman has not yet provided the trial court with a copy of the subject postconviction motion, we dismiss the petition for writ of mandamus without prejudice to allow Bregman to file a copy of the postconviction motion with the trial court. See Fudge v. State, 147 So. 3d 1001, 1001 (Fla. 3d DCA 2014) (“Upon this Court's review, it appears the underlying Motion for Permission to File Motion for Belated Motion for Postconviction Relief was not docketed by the clerk of the trial court. Therefore, the petition for mandamus is dismissed without prejudice to Petitioner to file said motion with the trial court.”).
Petition dismissed.