MARK OSTERBACK, APPELLANT,
v.
HARRY K. SINGLETARY, JR., SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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The court held that the trial court erred in denying the petition for writ of mandamus because the disciplinary proceeding was improper.
Appellant was found guilty of possession of a weapon in a disciplinary proceeding, penalized with confinement and forfeiture of gain-time. He petition…
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PER CURIAM.
Mark Osterback appeals an order of the circuit court which denied his petition for writ of mandamus. That petition challenged a disciplinary proceeding where he was charged with possession of a weapon. After a hearing, he was found guilty and penalized by disciplinary confinement and forfeiture of gain-time.
We find that the mandamus petition showed entitlement to relief on two issues. Appellant’s defense at the disciplinary hearing was that the object in question was not a weapon. The team improperly denied his request for production of the object without giving valid reasons for doing so. Young v. Lynch, 846 F. 2d 960 (4th Cir.1988); Young v. Kann, 926 F. 2d 1396 (3d Cir.1991). We also find that appellant was excluded from the hearing during the taking of some of the evidence contrary to section 944.28(2)(c), Florida Statutes (1995) and Florida Administrative Code Rule 33-22.006(1)(b).
We accordingly reverse the decision of the trial court and remand with directions to grant the petition for writ of mandamus. The precise remedy to which appellant is entitled shall be determined by the trial court upon remand.
MINER, MICKLE and LAWRENCE, JJ., concur.
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Fla. Caucus OF Black State Legislators, Inc. v. Crosby, 877 So. 2d 861 (Fla. 1st DCA 2004)…se the Department’s statutory obligations are discretionary, rather than ministerial. Because the legislature chose to use the word “shall” throughout section 944.293, the Department’s obligations are not discretionary.1 See Osterback v. Singletary, 679 So. 2d 43, 44 (Fla. 1st DCA 1996) (reversing the trial court’s order denying petition for writ of mandamus with directions to grant the petition because the defendant was excluded from the hearing when the applicable statute stated that the defendant “shall b…
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Ortiz v. Moore, 776 So. 2d 333 (Fla. 1st DCA 2001)…filed to seek review of DOC’s April 11, 1997, order. The order on review is hereby quashed and the cause remanded to the circuit court with directions to reconsider the merits of petitioner’s substantive claims in light of Osterback v. Singletary, 679 So. 2d 43 (Fla. 1st DCA 1996), and other applicable precedents. [*335] Writ GRANTED, order QUASHED and REMANDED for farther proceedings with instructions. ERVIN, BOOTH and KAHN, JJ., concur.…
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Giordano v. Dixon, 744 So. 2d 1024 (Fla. 4th DCA 1997)…ed as evidence in his disciplinary hearing for disobeying the order, is substantially the same as its obligation to produce witnesses who may be helpful to appellant. See Williams v. James, 684 So. 2d 868 (Fla. 2d DCA 1996); Osterback v. Singletary, 679 So. 2d 43 (Fla. 1st DCA 1996). The present record is devoid of “some” or “a modicum” of evidence, see Dugger v. Grant, 610 So. 2d 428, 432 & n. 3 (Fla.1992), on which the department could rely to support its determination that appellant had ever been ordere…
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
- Young v. Grady B. Lynch, 846 F.2d 960 (4th Cir. 1988)
- Young v. Kann, 926 F.2d 1396 (3d Cir. 1991)