ROBERT GOOBERMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed denial of post-conviction relief, holding that challenges to DOC gain-time rules must proceed by mandamus petition after administrative exhaustion, not by rule 3.850 motion, and that counsel was not ineffective for failing to anticipate future regulatory changes.
A defendant cannot challenge DOC gain-time rules through a rule 3.850 post-conviction motion; the proper remedy is a mandamus petition in circuit court after exhausting administrative procedures, and counsel is not ineffective for failing to anticipate future regulatory changes.
[1] A challenge to a Department of Corrections gain-time rule must be pursued by petition for writ of mandamus in circuit court after exhaustion of administrative remedies, n…
[2] Trial counsel is not ineffective for failing to anticipate changes in administrative regulations that occur years after a guilty plea is entered.
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Join FLexlaw to unlock all legal intelligenceAppellant sought post-conviction relief arguing that a new DOC incentive gain-time rule rendered him ineligible for certain gain-time, that his attorn…
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PER CURIAM.
We have for review an order of the trial court summarily denying appellant’s motion for post-conviction relief under rule 3.850. Appellant makes three arguments: (1) that a recently propounded DOC incentive gain-time rule, which presumably would render him ineligible for a certain portion of gain-time, is unconstitutional and otherwise illegal; (2) that his attorney was ineffective in advising appellant that he would receive a specific amount of gain-time, thereby inducing appellant to enter a plea to the charges; and (3) that as a result of the foregoing, his plea was involuntary.
Regarding the first argument, the proper remedy to compel an award of gain-time by the DOC is a petition for writ of mandamus filed in the circuit court after administrative procedures through DOC have been exhausted. See King v. State, 665 So. 2d 377 (Fla. 4th DCA 1996); Barber v. State, 661 So. 2d 355 (Fla. 3d DCA 1995); Newsome v. Singletary, 637 So. 2d 9 (Fla. 2d DCA 1994). Appellant’s last two claims are simply without merit because trial counsel could not be deemed ineffective for fading to have anticipated a change in administrative rules three years into the future.
Accordingly, we affirm the trial court’s order denying appellant’s rule 3.850 motion without prejudice to appellant’s ability to file a petition for writ of mandamus in the trial court after he exhausts his administrative remedies.
DELL, WARNER and STEVENSON, JJ., concur.
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Citator
Cited By
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Hunt v. State, 775 So. 2d 1000 (Fla. 4th DCA 2000)…PER CURIAM. The order denying appellant’s postcon-viction motion is hereby affirmed, without prejudice to seek relief by an administrative grievance filed with the Department of [*1001] Corrections. See, Gooberman v. State, 697 So. 2d 1014 (Fla. 4th DCA 1997). DELL, POLEN and SHAHOOD, JJ., concur.…
Authorities Cited
- Hogan v. Ardc Corp., 637 So. 2d 9 (Fla. 4th DCA 1994)
- Barber v. State, 661 So. 2d 355 (Fla. 3d DCA 1995)
- Jennings v. State, 665 So. 2d 377 (Fla. 4th DCA 1996)
- Jawan King v. State, 665 So. 2d 377 (Fla. 4th DCA 1996)