ARTHUR F. GIORDANO, APPELLANT,
v.
FRED DIXON, SUPERINTENDENT, APPELLEE
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Florida appellate court reversed denial of habeas corpus petition and ordered Department of Corrections to vacate disciplinary report and restore gain time because the department failed to produce a cassette tape of the verbal order the inmate was accused of violating, depriving him of evidence needed for his disciplinary hearing.
The Department of Corrections must produce evidence (a cassette tape of a verbal order) requested by an inmate in a disciplinary hearing or show good cause for its failure to do so, and failure to produce such evidence requires vacation of the disciplinary report and restoration of gain time.
[1] In a prison disciplinary hearing, the Department of Corrections must produce evidence requested by an inmate, such as a cassette tape of an alleged verbal order, or demon…
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Join FLexlaw to unlock all legal intelligence“The department's obligation to produce the cassette tape containing the verbal order appellant was accused of violating, which appellant requested 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.”
Court explaining the evidentiary obligation of the Department of Corrections in disciplinary proceedings.
Appellant Giordano was accused of disobeying a verbal order in a disciplinary hearing and requested the cassette tape containing that order as evidenc…
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PER CURIAM.
We treat the trial court’s denial of the petition for writ of habeas corpus as the denial of a petition for writ of mandamus to restore gain time, reverse same and direct the trial court to instruct the Department of Corrections to (1) vacate and expunge its disciplinary report and (2) restore gain time or conduct another evidentiary hearing.
The department’s obligation to produce the cassette tape containing the verbal order appellant was accused of violating, which appellant requested 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 ordered not to do that which he was accused of doing. On this point alone the trial court erred in not granting appellant’s petition. In the event another hearing is held, the Department of Corrections must either produce the cassette tape requested by appellant or show good and valid cause for its failure to do so.
GLICKSTEIN, GUNTHER and PARIENTE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Frantz v. Moore, 778 So. 2d 1003 (Fla. 1st DCA 2000)…who have Information pertaining to the infraction.” If the disciplinary team denies an inmate’s witness or evidence request, it must explain its reasons for doing so. See, e.g., Plymel v. Moore, 770 So. 2d 242 (Fla. 1st DCA 2000); Giordano v. Dixon, 744 So. 2d 1024 (Fla. 4th DCA 1997); Department of Corrections v. Marshall, 618 So. 2d 777 (Fla. 1st DCA 1993); Holcomb v. Department of Corrections, 609 So. 2d 751 (Fla. 1st DCA 1992). While we do not hold that an inmate is never required to give the specific nam…
Authorities Cited
- Dugger v. Wiley Jerome Grant, 610 So. 2d 428 (Fla. 1992)
- Williams v. James, 684 So. 2d 868 (Fla. 2d DCA 1996)
- Osterback v. Singletary, 679 So. 2d 43 (Fla. 1st DCA 1996)